People ex rel. Brenner v. Sain, 37599

• Decision Date: 27 September 1963
• Docket Number: No. 37599,37599
• Citation: 193 N.E.2d 767,29 Ill.2d 239
• Parties: The PEOPLE ex rel. Stefan BRENNER, Appellant, v. Frank G. SAIN, Sheriff, Appellee.
• Court: Illinois Supreme Court

Page 767

193 N.E.2d 767

29 Ill.2d 239

The PEOPLE ex rel. Stefan BRENNER, Appellant, v. Frank G. SAIN, Sheriff, Appellee.

No. 37599.

Supreme Court of Illinois.

Sept. 27, 1963.

Rehearing Denied Nov. 25, 1963.

Bellows, Bellows & Magidson, Chicago, for appellant.

William G. Clark, Atty. Gen., Springfield, and Daniel P. Ward, State's Atty., Chicago (Fred G. Leach and E. Michael O'Brien, Asst. Attys. Gen., and Edward J. Hladis and James R. Thompson, Asst. State's Atty., of counsel), for appellee.

DAILY, Justice.

The appellant, Stefan Brenner, was arrested under an extradition warrant issued by the Governor of the State of Illinois at the request of the Governor of the State of Wisconsin. He filed a petition for a writ of habeas corpus in the criminal court of Cook County and after a hearing the court quashed the writ and ordered that the appellant be remanded to the custody of the sheriff of Cook County for delivery to an agent of the State of Wisconsin. This appeal has been perfected to review that order. Ill.Rev.Stat.1961, chap. 60, par. 27.

The demand of the Governor of Wisconsin stated that the appellant was charged with committing acts in Illinois which intentionally resulted in his committing the crime of abandonment and nonsupport in Wisconsin. From the papers submitted with the demand it appeared that in 1949 a child was born to the complainant in Germany. In 1950 a German court found that appellant was the father of the child and ordered him to pay support money to the complainant. The complainant later came to the United States, married another man, and settled in Wisconsin, and the appellant also came to the United States, married another woman, and settled in Illinois without ever having lived in Wisconsin.

The warrant issued by the Illinois Governor recited that a demand had been made upon him for the appellant's arrest as a fugitive from justice; that he had been furnished with a copy of a complaint made before a Wisconsin magistrate, charging appellant with committing acts in Illinois which resulted in committing the crime of abandonment and nonsupport in Wisconsin; and that he was satisfied that appellant was a fugitive from justice who had fled from Wisconsin and taken refuge in Illinois. The warrant ordered the arrest of the appellant, describing him as a fugitive.

The first contention advanced on this appeal is that the warrant of the Governor of Illinois, describing the appellant as a fugitive and ordering his arrest as a fugitive, is invalid because it is in conflict with the demand and supporting papers which show that the appellant had never been in Wisconsin and was therefore not a fugitive from that State. In support of this contention appellant relies strongly upon People ex rel. Ritholz v. Sain, 24 Ill.2d 168, 180 N.E.2d 464. In that case the demand by the Governor of the State of Michigan stated that he relator had been charged by a complaint and warrant with a certain offense. However, the supporting papers showed that the relator had been tried, convicted and sentenced and that his conviction had been affirmed by the Michigan Supreme Court. It appeared from these papers that the relator had been admitted to bail pending the outcome of his appeal and that he became a fugitive from justice when he failed to surrender himself following the affirmance of his conviction. We held that the conflict between the demand and supporting papers rendered the Illinois warrant invalid. In the present case the supporting papers and the Wisconsin Governor's demand are not in conflict, since they each are based upon the allegation that the appellant was charged with conduct in Illinois which resulted in his commission of a crime in Wisconsin. The warrant signed by the Governor of Illinois was a printed form which contained language describing the appellant as a fugitive from justice. The form was modified by inserting, in typewriting, language reciting that the appellant was charged with committing acts in the State of Illinois which resulted in his commission of a crime in the State of Wisconsin. However, the printed portion of the Governor's warrant reciting that the appellant was a fugitive from justice was not stricken. It is apparent from the modification of the warrant that it was issued on the basis that appellant was charged in Wisconsin with committing acts in Illinois resulting in the commission of a crime in Wisconsin. The language in the printed form of the warrant describing the appellant as a fugitive from justice who had fled from Wisconsin may be disregarded as surplusage and, when the warrant is construed with this language omitted there is no conflict between the supporting papers, the demand, and the warrant. Cf. Harrison v. State, 38 Ala.App. 60, 77 So.2d 384, 386.

Appellant also contends that he is not, in any event, subject to extradition since he was not in Wisconsin at the time the crime was allegedly committed and is therefore not a fugitive from that State. In the absence of statutory authority it has been held that a person may successfully resist extradition by proving that he was not in the demanding State at the time the crime was alleged to have been committed. (People ex rel. Garner v. Clutts, 20 Ill.2d 447, 455, 170 N.E.2d 538.) However, section 6 of the Uniform Criminal Extradition Act (Ill.Rev.Stat.1961, chap. 60, par. 23) provides that: 'The Governor of this State may also surrender, on demand of the Executive Authority of any other state, any person in this State charged in such other state in the manner provided in Section 3 with committing an act in this State, or in a third state,...