Simmons v. Vandyke

• Decision Date: 22 June 1894
• Docket Number: 17,210
• Citation: 37 N.E. 973,138 Ind. 380
• Parties: Simmons v. Vandyke et al
• Court: Indiana Supreme Court

37 N.E. 973

138 Ind. 380

Simmons v. Vandyke et al

No. 17,210

Supreme Court of Indiana

June 22, 1894

From the Madison Circuit Court.

The judgment is reversed with instructions to sustain the appellant's exceptions to the return to the writ of habeas corpus.

W. S Diven, B. McMahan, J. W. Lovett and H. C. Ryan, for appellant.

E. D Reardon, J. R. Thornburgh, M. P. Turner and B. H. Campbell for appellees.

OPINION

Hackney, C. J.

The appellant sought to be released from custody and confinement in the county jail, and filed, in the lower court, his petition for the writ of habeas corpus, alleging that the appellees William Vandyke, sheriff of Madison county, and George Welker, a policeman of the city of Anderson, had arrested the appellant and held him in custody without warrant or legal charge or authority, but upon a pretended charge of forgery in the State of Oregon, and pursuant to the direction of the chief of police of Portland, Oregon, communicated by telegraph; that he had not committed any crime, nor had he been charged with the commission of any crime in this State, and that his arrest had not been ordered by any court or officer of this State.

The appellees made separate returns to the writ, but, by agreement, the returns were considered as joint. By said returns, it appeared that Welker was a police officer, and, as such, took the appellant into custody and delivered him into the custody of Vandyke, as sheriff, for commitment; that he did so upon a telegram received from one Hunt, chief of police of Portland, Oregon, to the effect that he held a warrant for appellant upon a charge of forgery, and directing the arrest; that after the arrest, said Hunt sent to Welker, by telegraph, a copy of a warrant issued to and held by him, said Hunt, for the arrest of appellant; that Hunt had sent a further telegram that he had started, with proper papers, for Simmons; that appellees believed appellant guilty of said crime and made said arrest in good faith, and that they then believed said Hunt en route to Anderson to procure the extradition of the appellant. The court overruled exceptions to the returns, and that ruling presents the assigned errors.

The appellees have not aided us with any brief, argument or citation of authority, and we find no statutory authority for making the arrest and detaining the appellant upon the facts stated in the petition and returns. Fugitives from justice from one county in this State to another county in this State may be apprehended by proceedings as provided in section 1667, R. S. 1894 (section 1598, R. S. 1881), and fugitives from another State into this State may be arrested, detained and returned upon demand of the executive authority of the State from which the criminal is a fugitive, upon warrant and upon identification as required by section 1668, et seq., R. S. 1894 (section 1599 et seq., R. S. 1881).

It is manifest that no authority for the arrest and detention under consideration is found in the provisions cited, nor can it be said that the arrest was made upon view, by the officers, of the commission of a crime.

The act of February 12, 1838, R. S. 1838, p. 319, authorized proceedings before certain judicial officers of this State, upon which arrests of fugitives from other States were permitted and their detention directed. That act passed into the R. S. 1843, p. 1030, but has not been included in any subsequent revision. We do not inquire if said act is now in force, since there is no pretense that the arrest and detention in this case were made pursuant thereto.

At common law, peace officers have the power to arrest upon information of the commission of a felony, and without a warrant, and do not do so at the peril of proving the commission of the felony. Doering v. State, 49 Ind. 56; 1 Am. and Eng. Encyc. of Law, p. 732, section 2.

In re Fetter, 3 Zabriskie (N. J.), 311, 57 Am. Dec. 328, it was held that under article 4, section 2, of the Constitution of the United States, the power to arrest and detain a fugitive, until the authorities of the State whose laws had been offended against could make the demand in said section provided, was implied. It was said: "The denial of the power to arrest and detain an offender until the demand for his surrender be actually made, would, it is manifest, render the provision of the constitution well nigh nugatory. If a person committing murder, robbery, or other high crime in one State, may, by crossing a river, or imaginary line, avoid arrest or detention until an executive requisition and order for his surrender may be obtained, the execution of the criminal law would be impotent indeed. Sound public policy, good faith, a fulfillment of the requirements of the constitution, all require that the arrest and detention of the offender, be made wherever he may be found, preparatory to a demand and surrender." As supporting this power, are cited People v. Schenck, 2 Johns. *479; In re Goodhue, 1 Wheel. Cr. Cas. 427; Commonwealth v. Deacon, 10 Serg. & R. 125.

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