Rummerfield v. Watson

• Decision Date: 26 April 1934
• Docket Number: 33494
• Citation: 70 S.W.2d 895,335 Mo. 71
• Parties: Ex Parte Raymond Rummerfield, Petitioner, v. Alex Watson
• Court: Missouri Supreme Court

70 S.W.2d 895

335 Mo. 71

Ex Parte Raymond Rummerfield, Petitioner, v. Alex Watson

No. 33494

Supreme Court of Missouri

April 26, 1934

Petitioner discharged.

Don Purteet for petitioner.

Wm O. Sawyers, Assistant Attorney General, for respondent.

Tipton J. All concur, except Ellison and Hays JJ., absent.

OPINION

TIPTON

The relator, restrained of his liberty on a warrant of the Governor of this State, issued upon a requisition of the Governor of Oklahoma, invokes habeas corpus to effect his release.

Relator, charged with robbery, pleaded guilty and was sentenced to imprisonment in the Oklahoma penitentiary for a term of five years, on December 31, 1929. In accordance with the laws of that State, he was paroled for a period of ten years on June 13, 1931, which parole was revoked April 19, 1933, for the reason that said relator was received at the Missouri penitentiary on March 23, 1933, to serve a sentence of two years for the crime of uttering bogus checks, which was in violation of his conditional liberation. Upon the completion of his sentence at the Missouri penitentiary he was released and is held in custody of respondent, the agent and messenger for the State of Oklahoma, under the authority above stated. This requisition was applied for and granted to secure the relator's return to the State of Oklahoma, to satisfy the judgment there pending against him. Other pertinent facts will be stated in the course of this opinion.

Interstate extradition is governed by the Federal Constitution and statutes. We quote the following provisions:

"A person charged in any State with treason, felony, or other crime, who shall flee from justice and be found in another State, shall, on demand of the executive authority of the State from which he fled, be delivered up to be removed to the State having jurisdiction of the crime." [Sec. 2, Art. 4, Constitution of United States.]

"Whenever the executive authority of any State or Territory demands any person as a fugitive from justice, of the executive authority of any State or Territory to which such person has fled, and produces a copy of an indictment found or an affidavit made before a magistrate of any State or Territory, charging the person demanded with having committed a treason, felony, or other crime, certified as authentic by the governor or chief magistrate of the State or Territory from whence the person so charged has fled, it shall be the duty of the executive authority of the State or Territory to which such person has fled to cause him to be arrested and secured, and to cause notice of the arrest to be given to the executive authority making such demand, or to the agent of such authority appointed to receive the fugitive, and to cause the fugitive to be delivered to such agent when he shall appear. If no such agent appears within six months from the time of the arrest, the prisoner may be discharged. All costs or expenses incurred in the apprehending, securing, and transmitting such fugitive to the State or Territory making such demand, shall be paid by such State or Territory." [Sec. 5278, R. S. of the United States (18 U.S.C. A., sec. 662).]

"As has often been said, the duty of the executive of an asylum state to deliver a fugitive from justice to the authorities of a demanding state does not rest upon the principle of comity, but on constitutional obligation. The clause of Section 2, Article 4, of the Constitution, just quoted, creates such duty, and confers the power upon Congress to deal with that subject. Section 5278, Revised Statutes of the United States, prescribes the terms governing interstate extradition. Sections 3934 and 1908 of the Missouri statutes disclose on their face that they are intended to be in aid merely of the Federal law.

"According to said Section 5278, before the Governor of one state is authorized to honor the requisition made on him by the Governor of another state for the delivery of an alleged fugitive from justice, these facts must be made to appear: (1) that the person named in the requisition is demanded as a fugitive from justice; (2) that the demanding executive has produced a copy of an indictment found . . . charging the person demanded with having committed a crime; (3) that such copy has been certified as authentic by the Governor of the state making the demand; and (4) that the person demanded is a fugitive from justice. These facts are jurisdictional. [Commonwealth ex rel. v. Superintendent of County Prison, 220 Pa. St. 401, 69 A. 916, 21 L. R. A. (N. S.) 939.] If they exist, they authorize interstate extradition. If any of them are wanting, the Governor of the state upon whom the requisition is made has no authority to deliver up the person demanded for removal to another state. [Roberts v. Reilly, 116 U.S. 80, 6 S.Ct. 291, 29 L.Ed. 544; Ex parte Spears, 88 Cal. 640, 26 P. 608, 22 Am. St. Rep. 341.] The question of whether or not the Governor in a given case has exceeded his authority, that is, has honored the requisition of the Governor of another state when the jurisdictional facts just referred to, or some of them, were nonexistent, may be determined by a judicial review of the proceedings had before him touching the requisition. Whether he has so exceeded his authority is, however, the only question that may be inquired into by a judicial tribunal. [Drew v. Thaw, 235 U.S. 432, 35 S.Ct. 137, 59 L.Ed. 302; Barranger v. Baum, 103 Ga. 465, 30 S.E. 527, 68 Am. St. Rep. 113; also Sec. 1908, Mo. Stat., supra.]" (Italics ours.) [State ex rel. v. Westhues, 318 Mo. 928, 2 S.W.2d 612, l. c. 615.]

Relator contends that the requisition should not have been honored, because it was not accompanied by a copy of an indictment or an affidavit made before a magistrate of the State of Oklahoma. At the hearing of this cause, the respondent frankly admitted this to be true; but he states that in lieu of a copy of the indictment or affidavit, the Governor of Oklahoma has produced a copy of the judgment and sentence of the District Court of Carter County, Oklahoma, wherein the relator was found guilty of robbery and sentenced to five years' imprisonment in the Oklahoma penitentiary.

Section 5278, supra, expressly states in substance that whenever the executive of any State demands any person as a fugitive from justice of the executive authority of any State to which such person has fled, and produces a copy of an indictment found or an affidavit made before a magistrate, charging the person demanded with having committed a crime, it shall be the duty of the executive of the State to which such person has fled to cause him to be arrested, and delivered to the agent of the demanding State.

This statute makes no distinction between a person sought before or after conviction. In both instances, if the statute is complied with it is necessary for the demanding executive to produce a copy of the indictment or a copy of the affidavit.

"Without the Federal statute there would be no extradition between states, nor could there be harmony of law." [Ex parte Hagan, 295 Mo. 435, 245 S.W. 336, l. c. 338.] In speaking of Section 2, Article 4, of the United States Constitution, the Supreme Court, in the case of Roberts v. Reilly, 65 S.Ct. 291, 116 U.S. 80, 29 L.Ed. 544, said: "It is not, in its nature, self-executing." Before the executive of the asylum State may remand a person to the demanding State the Federal statutes must be substantially followed.

In construing Section 5278, supra, this court in the case of Ex parte Hagan, supra, in an opinion by Graves, J., said:

"The first section, supra, clearly indicates (1) that the person must be a fugitive from justice, and (2) that the demanding executive must show (a) that this alleged fugitive is in fact a fugitive from justice, and (b) such demanding executive must produce and file 'a copy of an indictment found, or an affidavit made before a magistrate.' The demanding state must produce one or the other of these two instruments, and without the one or the other the surrendering executive is without authority to issue a rendition warrant." (Italics ours.)

It is true in the Hagan case, the petitioner was charged with a crime, but not convicted. We believe that Section 5278 supra, contemplates the return of a fugitive from...