State ex rel. Chase v. Calvird

• Decision Date: 03 February 1930
• Docket Number: No. 28744.,28744.
• Parties: THE STATE EX REL. GEORGE C. CHASE, Agent for STATE OF MASSACHUSETTS, in Matter of Requisition for WILLIAM D. CORBIN, v. C.A. CALVIRD, Judge, and L.W. KEELE, Clerk of Circuit Court of Bates County.
• Court: Missouri Supreme Court

24 S.W.2d 111

THE STATE EX REL. GEORGE C. CHASE, Agent for STATE OF MASSACHUSETTS, in Matter of Requisition for WILLIAM D. CORBIN, v. C.A. CALVIRD, Judge, and L.W. KEELE, Clerk of Circuit Court of Bates County.

No. 28744.

Supreme Court of Missouri, Division No. 1.

February 3, 1930.

Certiorari.

WRIT QUASHED.

H.O. Harrawood for relator.

(1) Scope of review under certiorari. Under a writ of certiorari, the court may consider not only the jurisdiction of the inferior court, but also any error apparent upon the face of the record which cannot be reached by appeal or writ of error. State v. Pfeffle, 293 S.W. 515; State ex rel. v. Mosman, 231 Mo. 474; State ex rel. v. Goodrich, 257 Mo. 48; State ex rel. v. Broaddus, 238 Mo. 189; State ex rel. v. Shelton, 154 Mo. 691; State ex rel. v. Wurdeman, 254 Mo. 561; State ex rel. v. Broaddus, 245 Mo. 123; In re Beck, 252 Mo. 320; Ex parte Smith, 135 Mo. 223; State ex rel. v. Landon, 304 Mo. 662. (2) The trial court exceeded its jurisdiction in granting the petition for writ of habeas corpus. The copy of petition for a writ of habeas corpus included in the return to the writ of certiorari utterly fails to meet the requirements of the statute in such cases, in that the petition is not accompanied by a copy of the warrant under and by virtue of which the prisoner was detained. Sec. 1878, R.S. 1919; State ex rel. Walker v. Dobson, 135 Mo. 1. (3) The Governor's warrant need not contain an express recital that the Governor found that the accused was a fugitive from justice. In re Hagan, 295 Mo. 450; Ex parte Dennison, 101 N.W. (Neb.) 1045.

E.B. Silvers for respondents.

(1) On certiorari only the record can be reviewed. State ex rel. Gaines v. Westhues, 2 S.W. (2d) 615. (2) The evidence introduced in the trial (in this case the Governor's warrant) is not to be considered, even though inserted in relator's abstract. State ex rel. Gaines v. Westhues, 2 S.W. (2d) 615. (3) A Governor's extradition warrant must show on its face all facts necessary to confer upon the Governor the authority to issue it. Ex parte Hagan, 295 Mo. 435, 245 S.W. 336. (4) The Governor is legally bound to find that the person sought to be removed is a fugitive from justice. Ex parte Hagan, 295 Mo. 435, 245 S.W. 336. To constitute him such, he must have been in the petitioning state at the time the alleged offense was committed. State ex rel. Gaines v. Westhues, 2 S.W. (2d) 615. (5) The offense charged must be one for which extradition lies. (6) The copy of indictment upon which the Governor's warrant is issued must be certified as authentic by the Governor of the petitioning State. Sec. 5278, R.S.U.S. (18 U.S.C.A. sec. 662); Ex parte Hagan, supra, 340. (7) Not only must the Governor's warrant show the above facts; but on habeas corpus the court may hear and determine them. State ex rel. Gaines v. Westhues, 2 S.W. (2d) 612.

ELLISON, C.

Certiorari to the judge and clerk of the Circuit Court of Bates County to bring up from that court the record in a cause entitled, "In re William D. Corbin; Habeas Corpus." The relator, George C. Chase, as agent of the State of Massachusetts, claims the right to the custody of Corbin for the purpose of returning him to that state to answer an indictment charging the crime of larceny, on requisition issued by the Massachusetts Governor and honored by the Governor of this State.

Pursuant to the requisition the Governor of Missouri issued an executive warrant under which Corbin was arrested and held by the sheriff of Bates County. Thereupon, Corbin sued out a writ of habeas corpus addressed to the sheriff and the relator, Chase. Upon a hearing, the cause being captioned as above, the circuit court or judge discharged Corbin on the ground that the executive warrant of rendition issued by the Governor of this State was void on its face. The judgment so recites. Following that, this court issued its writ of certiorari, and the respondents made return bringing up the record below, from which it appears the Governor's warrant was never made a part of the record in the cause. The relator contends:

(1) The trial court exceeded its jurisdiction in entertaining the proceeding below and the judgment was void because the application for the writ of habeas corpus was fatally defective, in that a copy of the Missouri Governor's executive warrant of rendition did not accompany the application when it was filed, as required by Section 1878, Revised Statutes 1919, and no statutory excuse verified by affidavit annexed to the petition was given for not filing it.

(2) Inasmuch as the trial court's judgment shows the original warrant was produced in open court by the relator as respondent below, and the judgment is expressly based thereon, this court ought to take cognizance of the warrant and its contents, a copy thereof being set out in the printed record (though it was not sent up as a part of the record). If this be done, says the relator, it will be found the warrant was in due form, and the judgment of the circuit court was erroneous.

A further short statement of the facts will suffice. As shown by the record, the petition for the writ of habeas corpus declares that Corbin "is unlawfully deprived of his liberty ... by virtue of a certain warrant purporting to be issued by the Governor of the State of Missouri, which warrant cannot be set out herein or attached hereto because petitioner has no copy thereof." The pleading then continues by stating certain facts and reasons on account of which the petitioner contends his detention and imprisonment are illegal. Among others, one is as follows: "That said warrant is void for other reasons which cannot be set out herein because this petitioner has not said warrant nor a copy thereof." (Italics ours.) The petition is supported by Corbin's affidavit that "the facts stated in the foregoing petition are true."

The judgment of the trial court, omitting formal parts at the beginning and conclusion, was as follows:

"And now on the same day come the respondents herein and make return in open court to the writ of habeas corpus herein, that the petitioner, William D. Corbin, is held in custody by them under and by virtue of an executive warrant, issued on January 16, 1928, by the Governor of the State of Missouri ... which said warrant is produced by the respondents in open court."

"And now, on the same day, the court having considered the petition, and the return to the writ herein, and the executive warrant of the Governor of the State of Missouri, under and by virtue of which the respondents return that they have custody and detention of the prisoner; and the court being fully advised in the premises, doth find that said warrant is void on its face ..." (Italics ours.)

The return of the respondent circuit judge and circuit clerk to the writ of certiorari in this court, contained the following:

"Now come the above respondents and for return to the Writ of Certiorari, heretofore issued by the Supreme Court of Missouri ... hereby transmit ... a true and complete transcript of the entire record ... said record consisting of the following pleadings and entries, copies of which are hereto attached, as follows:

"Petition for writ of habeas corpus;

"Order granting writ of habeas corpus;

"Record entry of filing petition;

"Record of hearing and judgment.

"The original writ of habeas corpus is not included herein for the reason that the respondents therein never made any written return thereupon nor returned same to this court; the only return made being the actual production of the relator therein, W.D. Corbin, in open court. The Governor's warrant referred to in the writ of certiorari is not returned herewith because the same was never filed and made a part of the record in this cause." (Italics ours.)

A copy of the mooted warrant, certified by the Secretary of State is attached as an exhibit to the relator's application for a writ of certiorari filed in this court, this application and exhibit being also set out in relator's printed abstract of the record; and the warrant is inserted in the printed abstract a second time at a point immediately following the return of the respondent circuit judge and clerk. But it is not certified to by the clerk of the Circuit Court of Bates County as a copy of the original and as a part of the transcript, or in any way authenticated by the respondents as in form the warrant on which the judgment of the circuit court was based. On the contrary their return, as we have heretofore shown expressly declares the warrant was not filed and made a part of the record in the circuit court, and neither the warrant nor a copy thereof is sent up.

I. The first question to be determined is whether the failure of Corbin to file or submit with his petition a copy of the Governor's executive warrant of rendition, or to state a sufficient excuse for not doing so, made the application fatally defective, and rendered void the whole proceeding Jurisdiction: culminating in the judgment attacked. Relator Application. takes the affirmative on this proposition, basing his contention on Section 1878, Revised Statutes 1919, and certain decisions of this court. The statute says:

"If the restraint or confinement is by virtue of any warrant, order or process, a copy thereof must accompany the petition, or it must appear, by affidavit annexed thereto, that by reason of the prisoner being removed or concealed before the application, a demand of such copy could not be made, or that such demand was made of the person by whom the prisoner is confined or restrained, and a copy refused."

It is to be noticed the statute recites a copy of the warrant must accompany the petition, or it must appear by affidavit annexed thereto either that a demand for a copy of the warrant could not be made because of the prisoner's being removed or concealed before the application, or that such demand was made and refused. The petition in this case does not...