People of State of Ill., ex rel. Smith v. Elrod, 80C6786.

• Decision Date: 03 April 1981
• Docket Number: No. 80C6786.,80C6786.
• Citation: 511 F. Supp. 559
• Parties: PEOPLE of the STATE OF ILLINOIS, ex rel. Russell SMITH, Relator, v. Richard ELROD, Respondent.
• Court: U.S. District Court — Northern District of Illinois

511 F. Supp. 559

PEOPLE of the STATE OF ILLINOIS, ex rel. Russell SMITH, Relator, v. Richard ELROD, Respondent.

No. 80C6786.

United States District Court, N. D. Illinois, E. D.

April 3, 1981.

Rick Schoenfield, Joseph A. Ettinger & Associates, Ltd., Chicago, Ill., for relator.

Elmer Kissane, Asst. State's Atty., Chicago, Ill., for respondent.

MEMORANDUM OPINION AND ORDER

SHADUR, District Judge.

Petitioner Russell Smith ("Smith") is the subject of an extradition warrant issued by Illinois Governor James Thompson as the result of an extradition request by the State of Tennessee. Smith has petitioned for a writ of habeas corpus and respondent Richard Elrod ("Elrod"), the Cook County Sheriff, has moved to dismiss. For the reasons stated in this memorandum opinion and order, Elrod's motion to dismiss is denied and Smith's petition is granted.

Smith is accused of committing an armed robbery in Tennessee November 12, 1974. Smith filed a habeas corpus petition in the Circuit Court of Cook County alleging several defects in the extradition proceeding. That petition was denied at the trial court level and the result was affirmed on appeal 85 Ill.App.3d 1198, 46 Ill.Dec. 275, 413 N.E.2d 1388 (No. 79-1245, 1st Dist. July 25, 1980). Smith's petition for a rehearing of the Illinois Appellate Court decision was denied and a petition for leave to appeal to the Illinois Supreme Court was also denied (No. 53979).

Only one issue is raised by Smith's federal petition: Smith contends that he was not in the State of Tennessee November 12, 1974. Extradition under both the federal and Illinois statutes is appropriate only when a person is a fugitive from justice in another state. 18 U.S.C. § 3182; Ill.Rev.Stat. ch. 60, § 19. It is hornbook law that a person not in the state at the time of the alleged crime (at least as to crimes requiring physical presence) cannot be a fugitive from justice. Moncrief v. Anderson, 342 F.2d 902, 904 (D.C.Cir.1964).

When an extradition proceeding is challenged on that ground, the government's submission of valid extradition papers constitutes a prima facie case. That shifts the burden to the petitioner to prove beyond a reasonable doubt that he was not in the state at the time of the alleged crime. United States ex rel. Grano v. Anderson, 318 F.Supp. 263 (D.Del.1970), aff'd, 446 F.2d 272 (3d Cir. 1971). If the extradition papers state a specific date on which the crime was committed, the petitioner need prove only that he was not in the state on that specific date. Hyatt v. New York ex rel. Corkran, 188 U.S. 691, 23 S.Ct. 456, 47 L.Ed. 657 (1903).

This Court's review of the Circuit Court of Cook County proceeding reveals that the trial judge applied an incorrect legal standard. At the hearing the trial judge found that the evidence demonstrated that Smith was in the State of Illinois continuously from October 25, 1974 until well after the date of the alleged crime (see for example Tr. 19-20).¹ That finding should have been sufficient to grant Smith's petition for a writ of habeas corpus.

But the judge held as a matter of law that evidence showing presence in the jurisdiction where the alleged crime was committed within a reasonable proximity of the time mentioned in the extradition documents is enough to require extradition (Tr. 36). For that purpose the trial court relied mistakenly on three cases: People ex rel. Mortensen v. O'Brien, 371 Ill. 351, 20 N.E.2d 782 (1939); People ex rel. Moore v. Wirz, 349 Ill. 80, 181 N.E. 641 (1932); Strassheim v. Daily, 221 U.S. 280, 31 S.Ct. 558, 55 L.Ed. 735 (1911).

Both Illinois cases stand for a quite different proposition: If a petitioner demonstrates that he was not in the state at the time mentioned in the extradition papers, the state may then produce evidence to show that the crime was not committed on the specific date mentioned in the extradition papers. Indeed in Mortensen, 371 Ill. at 355, 20 N.E.2d 782, the Court distinguished the precise situation posed by Smith in the present action:

While the evidence here does not show relator was in the demanding State on the precise date alleged, it tends to show the crime was committed about that time and that he was then in the city of Davenport. There is no dispute about this. Under the authorities cited this was sufficient for extradition. Cases holding that a prisoner is entitled to discharge where the Governor's warrant names a specific date as to the commission, or time of commission, of the offense, and on the hearing it is proved that the prisoner was not in the demanding State on that date, and there is no proof or offer of proof that the crime was in fact committed on some other date nor any evidence tending to show the prisoner was then in the demanding State, have no application here.

In Strassheim the petitioner had committed a culpable act that came to fruition only after he was out of the state. Under those circumstances the Supreme Court held that he was still a fugitive from justice because he was in the state at the time he committed the culpable act, 221 U.S. at 285, 31 S.Ct. at 560:

We think it plain that the criminal need not do within the State every act necessary to complete the crime. If he does there an overt act which is and is intended to be a material step toward accomplishing the crime, and then absents himself from the State and does the rest elsewhere, he becomes a fugitive from justice, when the crime is complete, if not before. citing cases For all that is necessary to convert a criminal under the laws of a State into a fugitive from justice is that he should have left the State after having incurred guilt there, Roberts v. Reilly, 116 U.S. 80 6 S.Ct. 291, 29 L.Ed. 544, and his overt act becomes retrospectively guilty when the contemplated result ensues.

Thus no authority has been advanced for the proposition that a petitioner must do more than demonstrate that he was not in the jurisdiction of the alleged crime on the specific date mentioned in the extradition papers. In fact the Supreme Court has explicitly stated in Hyatt, 188 U.S. at 711-12, 23 S.Ct. at 459:

In the case before us it is conceded that the relator was not in the state at the various times when it is alleged in the indictment that the crimes were committed, nor until eight days after the time when the last one is alleged to have been committed. That the prosecution on the trial of such an indictment need not prove with exactness the commission of the crime at the very time alleged in the indictment is immaterial. The indictments in this case named certain dates as the times when the crimes were committed, and where in a proceeding like this there is no proof or offer of proof to show that the crimes were in truth committed on some other day than those named in the indictments, and that the dates therein named were erroneously stated, it is sufficient for the party charged to show that he was not in the State at the times named in the indictments ....

Accordingly, had the trial judge applied the proper legal standard he should have granted the writ of habeas corpus based on his own findings of fact.

This Court's inquiry—and this opinion— would end here were it not for the opinion of the Illinois Appellate Court, which stated:

The record shows the trial court was thoroughly familiar with these

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