People ex rel. Rukavina v. Sain

• Decision Date: 22 September 1961
• Docket Number: No. 36315,36315
• Citation: 177 N.E.2d 110,22 Ill.2d 546
• Parties: PEOPLE ex rel. Joseph RUKAVINA, Appellant, v. Frank G. SAIN, Sheriff of Cook County, Appellee.
• Court: Illinois Supreme Court

Page 110

177 N.E.2d 110

22 Ill.2d 546

PEOPLE ex rel. Joseph RUKAVINA, Appellant, v. Frank G. SAIN, Sheriff of Cook County, Appellee.

No. 36315.

Supreme Court of Illinois.

Sept. 22, 1961.

Jason Ernest Bellows and Sherman C. Magidson, Chicago, for appellant.

William G. Clark, Atty. Gen., and Daniel P. Ward, State's Atty., Chicago (Fred G. Leach, Asst. Atty. Gen., and John T. Gallagher and Marvin E. Aspen, Asst. State's Attys., Chicago, of counsel), for appellee.

SCHAEFER, Justice.

This is an extradition case, and the question is whether, upon the evidence put before the court, the writ of habeas corpus was properly quashed.

The relator, Joseph Rukavina, was arrested by the sheriff of Cook County on the authority of a rendition warrant issued by the Governor of Illinois on the requisition of the Governor of Minnesota. A petition for a writ of habeas corpus was filed in the criminal court of Cook County to test the legality of the arrest and detention and the writ issued. After a hearing, the writ was quashed and the relator was remanded to the custody of the sheriff for delivery to the agent of the Governor of Minnesota. The relator has appealed directly to this court. Ill.Rev.Stat.1959, chap. 60, par. 27.

At the hearing on the return to the writ of habeas corpus, the respondent introduced in evidence only the warrant of the Governor of Illinois, and his own return to that warrant. Section 3 of our Uniform Criminal Extradition Act, which is essentially similar to the Federal act, provides that unless the fugitive from justice is an escaped convict or has violated the terms of his bail, probation or parole, a demand for extradition must be 'accompanied (1) by a copy of an indictment found or by information supported by affidavit in the state having jurisdiction of the crime, or (2) by a copy of an affidavit made before a magistrate there, together with a copy of any warrant which was issued thereupon; * * * (which) must substantially charge the person demanded with having committed a crime * * *.' (Ill.Rev.Stat.1959, chap. 60, par. 20; cf. 18 U.S.C. § 3182.) The rendition warrant in this case was based upon the second alternative and recited that 'The Governor of the State of Minnesota demands of me the arrest and delivery of Joseph Rukavina * * * as a fugitive from justice, and has produced and laid before me a copy of an (sic) Complaint, Warrant, Affidavit certified as authentic by the said Governor and duly authenticated, * * *.'

The relator urges that the warrant is insufficient because it does not show upon its face, and the respondent did not prove, that he was charged with a crime by an 'affidavit made before a magistrate.' The respondent, on the other hand, maintains that 'The words 'affidavit certified as authentic by the said Governor and duly authenticated' mean substantially the same as the statutory language 'affidavit made before a magistrate."

The rendition warrant in this case does not show that it was issued upon an affidavit made before a magistrate. In several cases this court has stressed the importance of this requirement that the affidavit be executed before a judicial officer. In Lacondra v. Hermann, 343 Ill. 608, 613, 175 N.E. 820, 823, the court said: 'The warrant in this respect is of itself insufficient, because it must appear to the Governor, to give him authority to issue his warrant, that the fugitive is charged with crime in the demanding state by an indictment or affidavit made before a magistrate. Ex parte Hagan, 295 Mo. 435, 245 S.W. 336; State (ex rel. Denton) v. Curtiss, 111 Minn. 240, 126 N.W. 719.' In that case, however, the requisition papers from the demanding State were introduced in evidence, and they cured the deficiency.

Again, in People ex rel. Poncher v. Toman, 371 Ill. 275, 279, 20 N.E.2d 579, 581, the court said: 'As held in the Lacondra case, it is necessary that the return of the sheriff show, either by the warrant of the Governor of the State, or by documents...