Rosenberg v. Slavin

• Decision Date: 01 December 1936
• Citation: 188 A. 272,122 Conn. 304
• Court: Connecticut Supreme Court
• Parties: ROSENBERG v. SLAVIN, Sheriff.

188 A. 272

122 Conn. 304

ROSENBERG v. SLAVIN, Sheriff.

Supreme Court of Errors of Connecticut.

December 1, 1936

Appeal from Superior Court, New Haven County; Newell Jennings Judge.

Habeas corpus proceeding by Edward G. Rosenberg against J. Edward Slavin, Sheriff, wherein plaintiff contended that he was unlawfully imprisoned, brought to the superior court, where a motion to expunge a part of the reply was granted and the issues were tried to the court. From a judgment dismissing the writ of habeas corpus, the plaintiff appeals.

No error.

Maurice W. Rosenberg, of New Britain, for appellant.

Abraham S. Ullman, of New Haven (Samuel E. Hoyt of New Haven, on the brief), for appellee.

Argued before MALTBIE, C.J., and HINMAN, BANKS, AVERY, and BROWN, JJ.

MALTBIE, Chief Justice.

The plaintiff, arrested and detained under a warrant of the Governor for his extradition to the State of New York, sought his release under a writ of habeas corpus. The defendant sheriff made a return in which he included a copy of the warrant, from which it appears that the plaintiff stands charged in the State of New York with the crime of grand larceny. In his reply the plaintiff alleged " the facts and circumstances out of which this accusation arose" as follows: That in March, 1936, he had sold and delivered to Charles Williams of Buffalo, N.Y., a certain oil royalty agreement, promising him that if he was not entirely satisfied with the investment the plaintiff would refund the money or substitute some other similar investment; that in August, 1936, Williams notified the plaintiff that he was not satisfied with the investment, and thereupon the plaintiff mailed him a check for $800 dated October 1, 1936, with the request that he retain the oil royalty agreement until the check was paid; that Williams did retain the check for a week or ten days, but that it was then returned to the plaintiff by the attorney general's office in New York, with a demand for immediate payment of the money; that, before he could arrange for that payment, the warrant for his arrest was issued; and that he was " advised" that he had committed no crime under the laws of New York. The defendant moved to expunge these allegations as statements of irrelevant and evidential matters and of legal conclusions. The court granted this motion, and the correctness of that ruling is the subject-matter of this appeal.

The only issue presented is whether the plaintiff had a right in this proceeding to offer evidence to support and establish, if he could, the facts alleged, as grounds for a decision that his detention under the Governor's warrant was illegal. The question so presented was one of the plaintiff's legal rights and should not have been determined upon a motion to expunge. Whitney v. Cady, 71 Conn. 166, 171, 41 A. 550; Warner v. New York, N.H. & H. R. Co., 86 Conn. 561, 566, 86 A. 23. The plaintiff does not, however, rely upon the impropriety of the use of the motion to test the substantial rights involved, and, particularly in view of the nature of the proceeding, we shall consider the question at issue. Vincent v. Mutual Reserve Fund Life Ass'n, 77 Conn. 281, 284, 58 A. 963.

In Taft v. Lord, 92 Conn. 539, 103 A. 644, 645, L.R.A.1918E, 545, we had before us a case where it was sought to extradite one Schumann to answer an indictment in the State of New York for failing to provide for the support, nurture, and education of his children there. He had formerly lived with his family in New York, but had left there to come to Connecticut to establish himself here, making provision for the temporary support of his family. About a month later he sent for them and they joined him here. After a short residence in this state, the parents quarreled, and the wife and children returned to New York, while he continued his residence in this state. The reply of the plaintiff, which raised the issue determinative of the case, was that Schumann was not in the State of New York at the time of the crime with which he was charged. 193 Supreme Court Records and Briefs, p. 460, back. The warrant under which he was detained did not state the date when the crime was alleged to have been committed. Of course, he could not be extradited as a fugitive from justice in order to answer for any wrongful act he did after he left the State of New York. We stated that upon the question of the right of New York to extradite him, the decisions of the Supreme Court of the United States were necessarily conclusive.

In Strassheim v. Daily, 221 U.S. 280, 31 S.Ct. 558, 55 L.Ed. 735, that court had before it a situation where the accused had not been in the demanding state at the time when most of the acts involved in the crime charged had been committed, but the court held that as he had been there at a time when certain material steps in its accomplishment had taken place, he was a fugitive from justice. In our decision in Taft v. Lord, we relied upon the Strassheim Case as determinative of the issues, and we quoted from the decision as follows: " ‘ We think it plain that the criminal need not do within the state every act necessary to complete the crime. If he does an overt act which is and is intended to be a material step toward accomplishing...