Sheriff, Clark County v. Thompson

• Decision Date: 08 April 1969
• Docket Number: No. 5671,5671
• Parties: SHERIFF, CLARK COUNTY, Nevada, Appellant, v. Donald Ballard THOMPSON, Respondent.
• Court: Nevada Supreme Court

Page 911

452 P.2d 911

85 Nev. 211

SHERIFF, CLARK COUNTY, Nevada, Appellant, v. Donald Ballard THOMPSON, Respondent.

No. 5671.

Supreme Court of Nevada.

April 8, 1969.

Harvey Dickerson, Atty. Gen., Carson City, George E. Franklin, Jr., Dist. Atty., Janson F. Stewart, Deputy Dist. Atty., Las Vegas, for appellant.

Raymond E. Sutton, Las Vegas, for respondent.

OPINION

ZENOFF, Justice.

In this appeal we are to determine whether respondent Thompson should be extradited to the state of California to stand trial for the crime of grand theft.

On February 26, 1967 Thompson entered into a written contract with Mr. and Mrs. B. W. Williams of Sunnyvale, California, in which Thompson agreed to sell approximately $6,000 worth of rare coins owned by Mr. Williams. Thompson was a guest at the Williams' home in California from February 25 through February 27, 1967. He was then entrusted with the coins and left. About one-half of these coins were subsequently returned.

On February 27, 1968 a criminal complaint was filed in the municipal court for the Sunnyvale Judicial District, Santa Clara County, California, charging Thompson with grand theft under California's theft statute which consolidates the offenses of larceny, embezzlement and obtaining money under false pretenses, Cal.Pen. Code § 484 (West 1955). ¹ See also Cal.Pen. Code § 490a (West 1955). ² This was accompanied by a comprehensive affidavit of the investigating detective who swore out the complaint setting forth the facts underlying the filing of the complaint. An arrest warrant was issued pursuant to the complaint and affidavit.

An application for requisition was made to the Governnor of California and on March 12, 1968 the Governor of California requested from the Governor of Nevada the extradition of Thompson. On March 14, 1968 the Governor of Nevada executed an executive warrant providing for Thompson's arrest and surrender to the California authorities. Thompson was arrested but was granted a writ of habeas corpus by the district court and was released from custody. The state here contends the writ was improperly granted. We agree.

Article IV, § 2 of the United States Constitution provides for the extradition of one who flees from one state to another to evade justice. ³ The asylum state in which such fugitive is found is constitutionally required to surrender him to the demanding state. This constitutional provision, however, is not self-executing. Kentucky v. Dennison, 65 U.S. (24 How.) 66, 104, 16 L.Ed. 717 (1860). For this reason in 1793 Congress enacted what is now 18 U.S.C. § 3182 providing for extradition of fugitives from justice. ⁴

However, the federal statute does not provide a scope of extradition coextensive with the constitution. Innes v. Tobin, 240 U.S. 127, 36 S.Ct. 290, 60 L.Ed. 562 (1916). The states are left with the authority to implement some of the constitutional authority by their own legislation. Innes v. Tobin, supra. However, it is well-settled that the federal statute and the constitution require extradition only if the fugitive fled the demanding state to avoid prosecution. South Carolina v. Bailey, 289 U.S. 412, 53 S.Ct. 667, 77 L.Ed. 1292 (1933); Innes v. Tobin, supra; Munsey v. Clough, 196 U.S. 364, 25 S.Ct. 282, 49 L.Ed. 515 (1905); Hyatt v. Corkran, 188 U.S. 691, 23 S.Ct. 456, 47 L.Ed. 657 (1903); United States ex rel. Vitiello v. Flood, 374 F.2d 554 (2d Cir. 1967); Smith v. Idaho, 373 F.2d 149 (9th Cir. 1967). While a criminal need not do within the demanding state every act necessary to complete his crime, he must at least effect an overt act there, coupled with an intent that this act be a material step towards accomplishing that crime. Strassheim v. Daily, 221 U.S. 280, 31 S.Ct. 558, 55 L.Ed. 735 (1911).

This appeal was submitted on the asserted ground that Thompson would be tried in California for embezzlement, that the requisite intent to appropriate to his own use the Williams' coins was not formed until he had left California, and that therefore there was no overt act coupled with criminal intent in California. The cases cited above which construe 18 U.S.C. § 3182 and Article IV, § 2 of the United States Constitution require that the crime for which extradition is sought must have been committed in the demanding state before the accused fled from that state. Since it is apparent that Thompson did not flee California to escape prosecution for a crime committed there, he is not subject to extradition under 18 U.S.C. § 3182.

We turn to the question whether the Uniform Criminal Extradition Act as enacted in Nevada, NRS 179.177--179.235, emplowers the Nevada executive department with the authority to extradite Thompson independent of the federal law. ⁵ We hold that it does.

The first inquiry which must be answered under the Uniform Act is whether the accused had to be present in the demanding state at the time the crime was allegedly committed in that state. We hold that such presence is not required by the Uniform Act. NRS 179.189 empowers the Governor of Nevada to surrender upon demand of the executive authority of any other state any person property charged with committing an act in this state, or in a third state, intentionally resulting in a crime in the demanding state, even though the accused was not in the demanding state at the time of the commission of the crime and has not fled therefrom. Since NRS 179.189 clearly exceeds the authority conferred by both the United States Constitution and its effectuating federal legislation, we are faced with the problem of whether it is valid. We hold that it is.

California enacted the provisions of the Uniform Act and upheld the extension of extradition authority beyond the federal law against constitutional challenge. In re Cooper, 53 Cal.2d 772, 3 Cal.Rptr. 140, 349 [85 Nev. 217] P.2d 956 (Cal.1960), cert. denied, 364 U.S. 294, 81 S.Ct. 104, 5 L.Ed.2d 83 (1960). The provision in question was impliedly approved by the United States Supreme Court in New York v. O'Neill, 359 U.S. 1, 11--12, 79 S.Ct. 564, 571, 3 L.Ed.2d 585 (1959). The High Court stated that '(c)omity among States, an end particularly to be cherished when the object is enforcement of internal criminal laws, is not to be defeated by an a priori restrictive view of state power.' As in New York v. O'Neill, supra, we find nothing in the United States Constitution which prohibits this exertion of state power, and we also find no forbidding limitation imposed by the Constitution of Nevada. Therefore we hold that NRS 179.189 is constitutionally valid.

Having decided that an accused need not be present in the demanding state at the time of the commission of the offense charged insofar as the power of extradition is concerned, we turn to the second and final inquiry which must be made. Both the federal law and NRS 179.183 require the presentation of certain documents by the demanding state which 'substantially charge' the person demanded with having committed a crime under the law of that state. All of the required documents were presented in this case. The only issue we need decide is whether the February 27, 1968 complaint when taken together with the accompanying affidavit 'substantially charged' a crime in California. The district court held that the complaint was too vague because it alleged a six-month period during which the putative crime occurred. An amended complaint was filed on May 17, 1968 limiting the time of the offense in response to the district court's objection, but we disregard it because it does not appear to have the required certification of the Governor of California.

The purpose of the documents required by NRS 179.183 is to establish probable cause for believing that an offense has been committed in the demanding state by the accused. Kirkland v. Preston 385 F.2d 670 (D.C.Cir. 1967). Legal technicalities are disregarded. Here the authenticated complaint and accompanying affidavit were unquestionably sufficient to meet these requirements. Hogan v. O'Neill, 255 U.S. 52, 41 S.Ct. 222, 65 L.Ed. 497 (1921); Compton v. Alabama, 214 U.S. 1, 29 S.Ct. 605, 53 L.Ed. 885 (1909); Appleyard v. Massachusetts, 203 U.S. 222, 27 S.Ct. 122, 51 L.Ed. 161 (1906); In re Strauss, 197 U.S. 324, 25 S.Ct. 535, 49 L.Ed. 774 (1905); Munsey v. Clough, 196 U.S. 364, 25 S.Ct. 282, 49 L.Ed. 515 (1905); United States ex rel. Vitiello v. Flood, supra; Smith v. Idaho, supra; In re Cooper, supra. The affidavit and complaint substantially charge an offense under the general California theft statute, Cal.Pen. Code § 484, and in particular substantially charge embezzlement as defined by Cal.Pen. Code §§ 503 & 506 (West 1955). ⁶ See also Cal.Pen. Code §§ 952, 955 & 959 (West 1956). ⁷ The absence from California of the accused at the time he formed the intent to embezzle does not prevent successful prosecution under the laws of California. Cal.Pen. Code § 778 (West 1956); Ex parte Hedley, 31 Cal. 108 (1866). ⁸

Since it appears that Thompson should be extradited, the writ of habeas corpus granted to him is quashed and he is remanded to custody.

COLLINS, C.J., and BATJER, MOWBRAY and THOMPSON, JJ., concur.

1 ' § 484. THEFT DEFINED

'(a) Every person who shall feloniously steal, take, carry, lead, or drive away the personal property of another, or who shall fraudulently appropriate property which has been entrusted to him, or who shall knowingly and designedly, by any false or fraudulent representation or pretense, defraud any other person of money, labor or real or personal property, or who causes or procures others to report falsely of his wealth or mercantile character and by thus imposing upon any person, obtains credit and thereby fraudulently gets or obtains possession of money, or property or obtains the labor or service of another, is guilty of theft. * * * For the purpose of this section, any false and fraudulent...