Perry v. Gwartney
| Decision Date | 08 March 1947 |
| Docket Number | 36845. |
| Parties | PERRY v. GWARTNEY, Sheriff. |
| Court | Kansas Supreme Court |
Appeal from District Court, Leavenworth County; James H. Wendorff Judge.
Appeal from District Court, Leavenworth County; James H. Wendorff Judge.
Habeas corpus proceeding by Frank A. Perry against John Gwartney Sheriff of Leavenworth County. Judgment for respondent, and plaintiff appeals.
Judgment affirmed.
Syllabus by the Court.
1. In a petition for a writ of habeas corpus the fact that petitioner was delivered by the state authorities of Missouri to federal authorities in Missouri to be taken to Kansas for confinement in the federal penitentiary pursuant to a sentence of a federal court, does not prevent the petitioner from being a fugitive from justice so as be be liable for extradition on request therefor by the governor of Missouri.
2. In a proceeding such as that described in the foregoing paragraph of this syllabus, it is held that the question of whether a statute of limitations of the demanding state has run in favor of petitioner is a matter of defense and will not be considered by us in a habeas corpus proceeding, but should be raised by petitioner on his trial.
3. The fact that a petitioner for a writ of habeas corpus has been sentenced to the federal penitentiary in Kansas and placed on probation from the sentence does not prevent his being returned to Missouri on request of the governor of that state for trial there for violation of the criminal statutes of that state.
Benjamin F. Endres, of Leavenworth (Homer Davis, of Leavenworth, on the brief), for appellant.
John H Murray, of Leavenworth, and Joseph N. Brown, of Springfield, Mo., for appellee.
This was a petition for a writ of habeas corpus brought originally in the circuit court. Judgment was for the respondent denying the writ. The petitioner has appealed.
About many of the facts there is no dispute. July 16, 1941, petitioner was incarcerated in the Missouri State Penitentiary following his conviction of burglary and grand larceny and his sentence to be confined there for a term of eight years. While serving that sentence he was taken before the federal court in Missouri, where he entered a plea of guilty to a violation of the Dyer Act, 18 U.S.C.A. § 408. He was then sentenced to a term of five years in a United States penitentiary with a provision that this sentence should be served concurrently with the sentence to the Missouri State Penitentiary. On October 27, 1942, petitioner was taken from the Missouri State penitentiary and brought into federal district court in Kansas, where he pleaded guilty to three indictments charging violations of federal statutes.
On Indictment No. 2222 he was sentenced to serve a term of confinement of one year and one day, the term to be consecutive to the eight-year term in the Missouri State Penitentiary. On Indictment No. 2223 he was sentenced to a term of five years, this sentence to run consecutively to the term of one year imposed in Case 2222. This sentence was suspended and petitioner placed on probation. On Indictment No. 2260 petitioner was sentenced to a five-year term in the federal penitentiary at Leavenworth on each of two counts, the sentences to run concurrently with each other and concurrently with the sentence in Case No. 2223. Execution of that sentence was suspended and petitioner was placed on probation.
It will be seen that the net result of the sentences in Kansas as far as actual confinement is concerned was to provide for confinement in the federal penitentiary at Leavenworth for a year and a day, which confinement was to being at the end of the sentence then being served by petitioner in the Missouri penitentiary. In addition for a period of ten years defendant would be on probation by the federal court of Kansas after he finished serving the sentence of a year and a day.
Immediately following these sentences petitioner was returned to he penitentiary at Missouri to finish his sentence there. While the petitioner was serving this term a complaint was filed by the prosecuting attorney of Greene County, Missouri, charging petitioner with an assault upon the jailer of the Greene County jail with a deadly weapon with intent to kill while in the act of escaping from the county jail. It was charged that the crime was committed May 17, 1941, while petitioner was in the jail for safe keeping awaiting trial of the burglary and larceny charge. The warrant on the charge of assault with a deadly weapon was issued by the justice of the peace of Greene County on March 13, 1945, almost four years after the crime of assault with intent to kill was alleged to have been committed. It was sent to the warden of the Missouri penitentiary shortly after its issue, that is, March 13, 1945, and was by the warden of that institution served upon petitioner. No other steps were taken under it to afford petitioner a preliminary examination or trial and he has never had a preliminary examination on that charge. While petitioner was srving the eight-year sentence in the Missouri penitentiary the governor of Missouri gave him a conditional commutation of it so that it would end December 8, 1945. On the day that he was to have been released from the Missouri penitentiary he was delivered to the United States marshal and taken to the penitentiary at Leavenworth to serve the sentence of a year and a day which had been imposed by the federal court of Kansas. This incarceration began December 8, 1945, ard with good time earned in that institution he was released on a conditional parole September 1, 1946. At the door of the federal penitentiary he was arrested by the sheriff of Leavenworth County, Kansas, by virtue of the warrant from the justice of the peace of Greene County, Missouri. Later a governor's warrant was issued by the governor to Kansas in response to a request for such by the governor of Missouri.
It will be remembered that the sentence of a year and a day was given petitioner by the federal court of Kansas upon the first indictment and that sentences aggregating ten years were imposed on the other two indictments but it was ordered that petitioner should be placed upon probation in each of those cases so that upon the completion of the sentence of a year and a day, which occurred September 1, 1946, the status of petitioner was changed from being confined in the federal penitentiary to being under probation under supervision from the federal court for Kansas.
Application was made by petitioner to the district court of Leavenworth County, Kansas, for release on the ground that he was being wrongfully held by the sheriff. That application for a writ was denied by the judge of the district court of Leavenworth and the petitioner has been held in the county jail at Leavenworth awaiting the outcome of this appeal.
The purpose of the petitioner asking for this writ is to prevent his being returned to Missouri to be tried on the case of assault with a deadly weapon with intent to kill. It will be remembered that the governor of Missouri commuted petitioner's eight-year sentence so it would expire December 8, 1945, and that following this commutation he was delivered into the hands of the United States marshal and taken to be incarcerated in the United States penitentiary at Leavenworth under the sentence of the federal judge for Kansas. Petitioner contends in this proceeding that when the governor of Missouri commuted his sentence and permitted the federal authorities to take him from Missouri to Kansas that he was not a fugitive from justice in Kansas. We are unable to agree with the argument of petitioner in that respect.
In Re Martin, 142 Kan. 907, 52 P.2d 1196, 1199, involves a situation somewhat analogous to this. There the petitioner sought to prevent his return to Texas to stand trial on the state charge. He alleged he had been held by the authorities in Texas and had been delivered to the federal authorities for trial and later for incarceration in Kansas, and that at the end of the incarceration in Kansas, Texas desired to have him returned there for trial upon an indictment found before his being delivered to Kansas. In dealing with the question we are here discussing we said:
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