Smith v. State

• Decision Date: 11 June 1965
• Docket Number: No. 9386,9386
• Parties: Charlies E. SMITH, Plaintiff-Appellant, v. STATE of idaho, Defendant-Respondent.
• Court: Idaho Supreme Court

Page 221

403 P.2d 221

89 Idaho 70

Charlies E. SMITH, Plaintiff-Appellant, v. STATE of idaho, Defendant-Respondent.

No. 9386.

Supreme Court of Idaho.

June 11, 1965.

Rehearing Denied July 2, 1965.

Derr & Derr, Boise, for appellant.

Allen G. Shepard, Atty. Gen., and Thomas G. Nelson, Deputy Atty. Gen., of Idaho, for respondent.

McFADDEN, Justice.

Charles E. Smith, appellant, was arrested by the sheriff of Ada County, pursuant to a rendition warrant issued by the Governor of Idaho upon the request of the Governor of Missouri, and held for extradition to Missouri, where he was charged by complaint with the first degree murder of Donna Jean Smith, at Kirksville, Missouri, on or about October 26, 1961. While being so held, appellant petitioned the District Court of the Third Judicial District for a writ of habeas corpus alleging that he was not a fugitive from justice, because he was not in Missouri when the alleged crime of first degree murder was supposedly committed; that the instruments upon which the rendition warrant was based do not substantially charge a crime under the laws of the State of Missouri; and that he was not identified as the party sought.

On the basis of the petition, the District Court issued its writ of habeas corpus directed rected to the sheriff of Ada County. In his return to the writ the sheriff alleged that appellant was being held by virtue of the rendition warrant of the Governor of Idaho, a copy of which was attached to his return, together with six affidavits of Missouri residents. In his answer to the return of the sheriff, appellant realleged the facts presented by his initial petition for the writ of habeas corpus, and on the issues so framed the cause was heard by the trial court.

During the hearing there was admitted in evidence, as appellant's exhibits, a letter from the Division of Health of Missouri certifying that there was no certificate of death on file in Vital Records, Division of Health, Jefferson City Missouri, for Donna Jean Smith, who was the person allegedly murdered; a letter from the sheriff of Muskogee County, Oklahoma, stating that a Charles E. Smith was incarcerated in the county jail there on October 27, 1961. This letter also stated that 'We have no information indicating the whereabouts of Charles E. Smith on October 25 and 26, 1961.' Other exhibits offered by appellant and admitted, were a map of Oklahoma and certified copies from the Secretary of State of Idaho of all original documents on file in his office in connection with appellant's extradition.

The state offered into evidence a copy of the Governor of Idaho's rendition warrant, which was admitted without objection. Affidavits of sic Missouri residents were offered of six Missouri residents were offered over appellant's objections that they were inadmissible, being hearsay evidence, and that they were also immaterial and irrelevant. Five of the affiants stated that they were residents of Kirksville, Adair County, Missouri, and were acquainted with appellant. One affidavit stated appellant was in Kirksville on October 24 or October 25, 1961, another stated appellant was there on October 25, 1961, the third stated appellant was there in affiant's home with appellant's daughter on October 24, 1961, the fourth stated appellant appeared in the Bank of Kirksville in October, 1961, and the fifth stated that the affiant saw appellant on October 25, 1961. The sixth affidavit recited that affiant identified appellant as the same person as Charles E. Smith, whose photograph is contained on a F. B. I. 'Wanted Poster' attached to the affidavit.

The deposition of Harry Lee Dodd was read into the record at the request of appellant. This deposition was to the effect that Dodd knew appellant for a number of years and that appellant with his wife and baby, had picked Dodd up in Kansas City, Missouri on October 25, 1961, at approximately 9:15 P.M.; that Dodd rode with appellant, and his wife and baby to Tulsa, Oklahoma, where appellant left him at approximately 10:00 P.M., October 26, 1961; that Dodd was with appellant containually during this time; that appellant's wife Donna Jean Smith [the person claimed to have been murdered] was alive when he parted company with appellant; that the car used by appellant was in poor repair; that from Tulsa, Oklahoma to Adair County, Missouri, was about 400 to 410 miles. He testified that the appellant's car couldn't have left Tulsa, Oklahoma, at 10:00 P.M., October 26, 1961, [the time. Dodd testified he last saw appellant in Tulsa], and been driven to Adair County and Back by 4:30 A.M., October 27, 1961, as it would have taken the car 25 to 26 hours to make such a trip. Dodd, further testified that he had been convicted of a felony in 1951, and that he had been admitted to several mental institutions and had twice been adjudged insane. At the time the deposition was taken Dodd was awaiting transfer to a mental institution after having been committed to it by order of the Probate Judge of Ada County, Idaho. Dodd had been appellant's cell mate in Ada County jail for two months prior to the taking of the deposition.

At the conclusion of the hearing the trial court found that appellant was being held in the custody of the sheriff of Ada County under the authority of the warrant issued by the Governor of Idaho; that the warrant of the Governor of Idaho, and its supporting documents were regular and valid; that appellant is the same and identical Charles E. Smith named in the Governor's warrant, and that he stands charged with the crime of first degree murder in the State of Missouri; that appellant is a fugitive from justice and from the State of Missouri under the applicable statutes of the United States and of this State. The trial court concluded the appellant was lawfully in custody and ordered the writ of habeas corpus to be quashed.

Appellant appealed from this order, assigning five errors. The first three assignments of error challenge the correctness of findings of fact of the trial court, asserting they are unsupported by the evidence and contrary to law. The fourth assignment of error asserts the trial court erred in admitting into evidence the affidavits of the six Missouri residents and in relying upon these affidavits in entering the order; the last assignment challenges the trial court's findinf that the Missouri complaint charging appellant with first degree murder sufficiently advised appellant of the charges against him and the manner of commission of the crime.

Appellant summarizes the issues before this court as: (1) whether, tested under applicable law, the complaint upon which the rendition warrant is based adequately charges him with the commission of a crime: (2) whether the State proved by admissible evidence that he was in the demanding state at the time of the alleged crime; (3) whether there is any proof to show he committed any crime within the State of Missouri and thereafter fied that state.

The charging portion of the complaint filed in Missouri, which is the basis for these extradition proceedings, reads:

'That on or about the 26th day of October, 1961 at and in the County of Adair and State of Missouri, the defendant, Charles E. Smith, did then and there feloniously,...