Scheinfain v. Aldredge
| Decision Date | 16 January 1941 |
| Docket Number | 13503. |
| Citation | 12 S.E.2d 868,191 Ga. 479 |
| Parties | SCHEINFAIN v. ALDREDGE, Sheriff, et al. |
| Court | Georgia Supreme Court |
Alfred Scheinfain filed his petition against Joseph McElroy, agent of the State of Massachusetts, and J. C. Aldredge, sheriff of Fulton County, for the writ of habeas corpus. The petition as amended alleged substantially as follows: The cause under which petitioner is restrained of his liberty is an extradition warrant of the Governor of Georgia, based upon a requisition by the Governor of Massachusetts, and which was issued without petitioner having the right to appear or be represented by his attorney. The warrant of the Governor of Georgia orders petitioner's arrest under a charge different from that contained in the certified copy of the mittimus from the Commonwealth of Massachusetts, the mittimus showing that petitioner had been convicted of the offense of 'carnal abuse,' whereas the warrant of the Governor of Georgia calls for petitioner's surrender under a charge of 'rape of child,' and the warrant is void for this reason. The requisition of the State of Massachusetts was based upon a mittimus, showing petitioner's conviction under the charge of 'carnal abuse,' and a sentence of fifteen to twenty years, which charge the State of Massachusetts voluntarily abandoned when, as the arresting and priority government, it surrendered petitioner to the Federal jurisdiction for sentence, having failed first to satisfy its own demands which it had the right and duty to do. The same acts which brought about petitioner's sentence in the Federal court on the charge of violating the White-Slave Act, 18 U.S. C.A §§ 397-404, resulted in petitioner's conviction under the charge of 'carnal abuse,' as set forth in the mittimus from Massachusetts. Petitioner was arrested as a fugitive from the State of Massachusetts in the State of New Hampshire, and carried back as a State prisoner, being placed in jail in July, 1936, where he was held until his 'loan' to the Federal jurisdiction for sentence November 6, 1936, after which the State jurisdiction sentenced him on the charge of 'carnal abuse,' and the State failed to exercise its right as the arresting government by surrendering petitioner to the Federal jurisdiction, well knowing that he would be removed beyond the confines of the State of Massachusetts. The Federal jurisdiction, with the consent of the State of Massachusetts did imprison petitioner subject to any and all orders of the attorney general of the United States; and petitioner was first carried against his will to the Federal penitentiary in Lewisburg, Pennsylvania, later being brought against his will to the Federal penitentiary in Atlanta, Georgia, where he was held until July 12, 1940. His arrest in Fulton County was unlawful and illegal, the mittimus containing the charge of 'carnal abuse' when there is no such crime under the laws of the Commonwealth of Massachusetts, and therefore the mittimus sets forth no offense against the Commonwealth of Massachusetts, and any arrest under any executive warrant based upon such alleged charge is void. Petitioner refused to sign his conditional release agreement from the Federal penitentiary in Atlanta, because the same contained the following: 'Special Conditions: To be taken into custody by the sheriff of Fulton County, Georgia, for authorities of clerk of Commonwealth Court, E. Cambridge, Mass., charge of carnal abuse,' petitioner having notified the Federal penitentiary authorities that he expected to resist extradition under the alleged sentence; but he was forced from the Federal penitentiary any way. After he was arrested as he walked from the Federal penitentiary gates, he was imprisoned by Aldredge under the illegal writ, and has been continuously held a prisoner over his protest, and has not been given the opportunity to appear before the Governor of Georgia or to notify him of his wish to be heard on the question of extradition. On July 22, 1940, the Governor of Georgia issued his extradition warrant naming Joseph McElroy as the agent of the State of Massachusetts as the one to whose custody petitioner was committed; and the extradition warrant, being based upon the matters and things herein complained of, was void. The Governor of Georgia was unaware of petitioner's wish to be present and resist the extradition proceedings, but the agent of the State of Massachusetts knew that petitioner would resist extradition and that he desired to be heard, because he had previously informed the agent, and the agent's failure to so inform the Governor of Georgia amounted to a fraud perpetrated upon petitioner and the Governor of Georgia. Aldredge has the actual custody of petitioner under illegal imprisonment, but it is under the direction of McElroy as the agent of the State of Massachusetts. Petitioner's imprisonment under any order of the State of Georgia, or of the State of Massachusetts, is void because: (a) The State of Massachusetts forfeited all rights it ever had in abandoning petitioner to the Federal jurisdiction. (b) It cannot legally attempt to enforce any alleged sentence or right it abandoned. (c) Any warrant from the State of Massachusetts based upon the abandoned sentence is null and void. (d) Any extradition warrant issued by the Governor of Georgia, based upon said abandoned right, is a nullity. (e) Said extradition warrant is likewise null and void for fraud in procurement McElroy, of Massachusetts, having concealed from the Governor petitioner's wish to be heard and resist said extradition. (f) The extradition warrant of the Governor of Georgia orders petitioner's surrender on a charge or alleged crime different from that contained in the purported mittimus from Massachusetts. (g) The purported mittimus fails to show that petitioner was convicted of a crime against the State of Massachusetts. Petitioner attached a copy of a certificate from the executive department of the State of Georgia, showing that a hearing would have been granted petitioner on his extradition had the Governor or his office had any information that he desired to be heard and resist the same. Petitioner also attached copies of the rendition warrant of the Governor of Georgia; the mittimus from the State of Massachusetts the order of the Lieutenant Governor, acting Governor of Massachusetts, naming McElroy as agent, and the fugitive warrant of the Governor of Georgia, made on the affidavit of Paul H. Clower, an arresting officer of Fulton County. There is a further fatal variance between the expressed purpose for which the Governor of Georgia ordered petitioner extradited, and that contained in the supporting document submitted by the Governor of Massachusetts, the Governor of Georgia ordering petitioner to surrender 'in order that said fugitive from justice may be brought to trial for the offense of which he stands charged,' whereas the supporting document shows petitioner to have been tried, convicted, and sentenced already, and the real purpose of the extradition is to confine petitioner under said alleged sentence. Any punishment by the State of Massachusetts or his extradition from Georgia for that purpose would be a violation of the rights secured to him by the 5th amendment to the constitution of the United States (Code, § 1-805), which provides: 'nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb * * *, nor be deprived of life, liberty, or property, without due process of law.' And petitioner's surrender to Massachusetts for punishment under the alleged sentence would be double punishment for having been placed in jeopardy twice for the same offense or act, and his imprisonment would be without due process of law, in that he was promised a sentence of five years to run concurrently with the Federal sentence, and was afterward told by the district attorney that the sentence he received was suspended, and for him not to attack the same, but when he completed the Federal sentence he would be free. The district attorney knew the character of the female complainant, and that he could not obtain a conviction in the courts of Massachusetts; and that is why petit...
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