Rayburn v. State, 3 Div. 894

Citation366 So.2d 698
Decision Date03 October 1978
Docket Number3 Div. 894
PartiesGeorge RAYBURN v. STATE.
CourtAlabama Court of Criminal Appeals

George W. Cameron, Jr., Montgomery, for appellant.

William J. Baxley, Atty. Gen., and Milton E. Belcher, Asst. Atty. Gen., for the State.

BOWEN, Judge.

This is an appeal from a judgment of the Circuit Court of Butler County denying George Rayburn's application for a writ of habeas corpus. Rayburn is in custody under an extradition warrant issued by the governor of this state ordering his return to the State of California from which he fled after pleading guilty and nolo contendere to two separate charges of grand theft.

I

Rayburn contends that the rendition warrant of the Governor of Alabama is insufficient and does not recite the necessary jurisdictional facts because it states that he is charged "by complaint, information and supporting papers".

In Alabama, no requisition warrant for the arrest and return of a fugitive from justice shall be recognized by the governor of this state unless the demand is in writing and accompanied by "a copy of an indictment found, or by an information supported by affidavit . . . or by a copy of an affidavit made before a magistrate there, together with a copy of any warrant which was issued thereon". Section 15-9-31, Code of Alabama 1975. Before a rendition warrant is issued, the documents presented by the demanding state must show, among other things, that the accused is "lawfully charged by indictment or by an information filed by a prosecuting officer and supported by affidavit to the facts, or by an affidavit made before a magistrate in that state, with having committed a crime under the laws of that state". Section 15-9-33, Code. These two sections operate as a guide and basis for the issuance of a warrant of extradition and must be read together. State v. Rogers, 30 Ala.App. 515, 518, 9 So.2d 758 (1942).

A prima face case of legal detention is made out when the rendition warrant recites:

"(1) that there was a demand in writing for the return of the person named in the warrant as a fugitive from justice by the executive authority of the state from which he fled, (2) that the requisition was accompanied by a copy of an indictment found, or an information or an affidavit before a magistrate, substantially charging the person demanded with a crime under the laws of the state from whose justice he fled, and (3) that the copy of the indictment, information or affidavit was authenticated by the executive authority making the demand." Morrison v. State, 258 Ala. 410, 63 So.2d 346 (1953); State v. Parish, 242 Ala. 7, 5 So.2d 828 (1941).

Thus where the rendition warrant recites all the above jurisdictional facts, a copy of the indictment, information, or affidavit need not accompany the rendition warrant itself. Morrison, supra; Chavers v. State, 41 Ala.App. 585, 143 So.2d 187, cert. denied, 273 Ala. 705, 143 So.2d 190 (1962); State v. Smith, 32 Ala.App. 651, 29 So.2d 438 (1947); Pool v. State, 16 Ala.App. 410, 78 So. 407, cert. denied, 202 Ala. 13, 79 So. 311 (1918). Without a showing to the contrary the courts must presume that the governor acted properly in issuing the rendition warrant. Harrison v. State, 38 Ala.App. 60, 77 So.2d 384, cert. denied, 262 Ala. 701, 77 So.2d 387 (1954); Denson v. State, 36 Ala.App. 216, 57 So.2d 830, cert. denied, 257 Ala. 184, 57 So.2d 832 (1951).

When the rendition warrant recites all the above jurisdictional facts, it is not necessary for the establishment of a prima facie case that the requisition warrant and the supporting papers be introduced into evidence. Shirley, supra, citing Stinson v State, 43 Ala.App. 27, 179 So.2d 94 (1965); State v. Freeman, 42 Ala.App. 240, 160 So.2d 12 (1964); Denson v. State, 36 Ala.App. 216, 57 So.2d 830 (1951); State v. Knight, 31 Ala.App. 174, 14 So.2d 159 (1943). However if the supporting papers are introduced into evidence it becomes the duty of the court to examine them for their sufficiency notwithstanding the introduction of a proper rendition warrant reciting the necessary jurisdictional facts. Harris v. State, 257 Ala. 3, 60 So.2d 266 (1951); Aldio v. State, 44 Ala.App. 303, 208 So.2d 212 (1967); Kelley v. State, 30 Ala.App. 21, 200 So. 115 (1941).

The prima facie presumption that the governor issued a rendition warrant on proper authority which is established by the introduction into evidence of the rendition warrant reciting the proper jurisdictional facts is rebutted where the state goes further and introduces allied papers accompanying the requisition of the governor of the demanding state and these allied papers show on their face that they are insufficient to support the requisition. Baugh v. State, 275 Ala. 319, 154 So.2d 674 (1963). Even if the rendition warrant is sufficient, a defect in the supporting papers will rebut the prima facie case established by that warrant. State v. West, 42 Ala.App. 678, 178 So.2d 182 (1965); Kelley, supra.

The rendition warrant in this case stated the necessary jurisdictional facts. McGahagin v. State, 41 Ala.App. 236, 131 So.2d 425 (1961). While a technical construction might denounce this warrant as deficient in not stating that the information was "filed by a prosecuting officer and supported by an affidavit to the facts", this quoted recital is not necessary in establishing, prima facie, the legality of the prisoner's detention. In Morrison v. State, 258 Ala. 410, 412, 63 So.2d 346 (1953), a rendition warrant was held sufficient which recited that the prisoner was charged by "affidavit and accusation" without stating that the affidavit was "made before a magistrate". See also Pool v. State, 16 Ala.App. 410, 78 So. 407 (1918). The fact that the rendition warrant stated that the appellant was charged by complaint as well as by information did not void the warrant though it would have been insufficient to merely state that the prisoner was charged by complaint. Hagamaker v. State, 354 So.2d 851 (Ala.Cr.App.1978); Lofton v. State, 46 Ala.App. 229, 239 So.2d 901 (1970).

The rendition warrant being sufficient, it was prima facie evidence of the facts stated therein.

"And, without more, the introduction of said warrant into evidence would have operated to cause the issues in the case to resolve themselves into two, and two only, viz: (1) Was petitioner a fugitive from justice?; and (2) Is he the identical person described in the said Governor's warrant?" Kelley v. State, 30 Ala.App. 21, 23, 200 So. 115, 117 (1941).

Since the state did introduce the supporting papers, they must be examined to determine their sufficiency.

II

Rayburn contends that such an examination will reveal that the supporting papers totally fail to meet the standards required by law and codified in Section 15-9-31 and Section 15-9-32, Code of Alabama 1975.

The supporting papers do not contain a copy of an indictment as Rayburn was not charged by use of that instrument.

An inspection reveals that a "complaint" is the only document which was executed before a magistrate. It has been held that

"a criminal complaint sworn to before a magistrate is in fact an affidavit within the meaning of the federal statute authorizing extradition upon the production of a copy of 'an affidavit made before a magistrate.' The great weight of authority supports this contention. (Citations omitted)." In re Martz, 83 Idaho 72, 357 P.2d 940, 943 (1960).

In Dinkelman v. State, 43 Ala.App. 177, 184 So.2d 845 (1966), the former Alabama Court of Appeals held that a "complaint" in the form of an "affidavit" properly sworn to was a sufficient compliance with the state statute authorizing extradition upon the production of a copy of an affidavit made before a magistrate. Hagamaker v. State, 354 So.2d 851 (Ala.Cr.App.1978) and Lofton v. State, 46 Ala.App. 229, 239 So.2d 901 (1970), are not in conflict with Dinkelman and Martz. Hagamaker and Lofton only hold that a Rendition warrant reciting that the accused is "charged by complaint" does not comply with the statutory requirement that the accused must be charged by indictment, information, or affidavit. This is due to the basic distinction between an affidavit and a complaint.

"(A) complaint is not necessarily an affidavit, nor are they in legal practice or contemplation understood as convertible terms. For, though a complaint may be reduced to writing and subscribed, it need not necessarily be certified by the magistrate, for the fact may otherwise appear by his records. And so a complaint may be merely formal, and made or entered by one who has little, if any, knowledge about the facts, and the examination consist of the deposition of other witnesses, State v. Armstrong, 4 Minn. 343, 344, (Gil. 251,) While an affidavit, as the term is ordinarily used in such cases, is understood to be a sworn statement of facts or a deposition in writing, and to include a jurat which means a certificate of the magistrate, showing that it was sworn to before him, including the date and sometimes, also, the place." State v. Richardson, 34 Minn. 115, 24 N.W. 354, 355-356 (1885).

"Complaint and affidavit are not convertible terms. But if the complaint sufficiently states the criminal charge and constitutes an examination so as to authorize the issuance of a warrant of arrest, and a jurat be attached, and it is properly certified by the magistrate, it will be essentially an affidavit in the meaning of the law." 2 J. Moore, A Treatise on Extradition and Interstate Rendition § 553 (1891).

Rayburn contends that even if the complaint in this case be considered an "affidavit made before a magistrate", it is still insufficient because it consists entirely of conclusions, does not set forth facts which would constitute a Fourth Amendment finding of probable cause, and does not state the sources of the affiant's knowledge.

The rule is stated in 31 Am.Jur.2d Extradition § 38.

"In interstate extradition proceedings, a complaint sworn to...

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