State, ex rel. Falconer v. Eberstein

• Decision Date: 25 March 1921
• Docket Number: 21277
• Citation: 182 N.W. 500,105 Neb. 833
• Parties: STATE, EX REL. EDWARD FALCONER, v. MARSHALL EBERSTEIN ET AL
• Court: Nebraska Supreme Court

182 N.W. 500

105 Neb. 833

STATE, EX REL. EDWARD FALCONER, v. MARSHALL EBERSTEIN ET AL

No. 21277

Supreme Court of Nebraska

March 25, 1921

ERROR to the district court for Douglas county: WILLIS G. SEARS JUDGE. Affirmed.

AFFIRMED.

Jamieson & O'Sullivan, for plaintiff in error.

Abel V Shotwell, W. W. Slabaugh and R. T. Coffey, contra.

DEAN J. LETTON, J., not sitting.

OPINION

DEAN, J.

Edward Falconer, the relator, filed an application for a writ of habeas corpus in the district court for Douglas county, alleging unlawful restraint of liberty under a warrant issued by the governor of this state, pursuant to a requisition issued by the governor of Iowa. The writ was denied and the relator prosecutes error.

It seems that, a few days before this proceeding was commenced, relator was arrested in Omaha on the oral request of respondent, who is the sheriff of Pottawattamie county, Iowa, and was confined in the Omaha jail. Subsequently he was admitted to bail in the sum of $ 500. The governor of Nebraska, after an ex parte hearing, honored the request for extradition, and relator was remanded to the Omaha jail, preparatory to being taken to Iowa. To obtain his liberty the relator applied for a writ of habeas corpus.

The offense for which extradition is sought is based on substantially these alleged facts: Relator was indicted by a grand jury in Pottawattamie county, Iowa, and charged by that body with having entered into an unlawful and felonious conspiracy, with four other persons, and that the alleged conspirators "did then and there, jointly and separately, take upon themselves to exercise and officiate in the offices of peace officers," falsely, etc., and that, while acting as pretended law officers, they unlawfully searched the farm premises of William Rodenburg, with the ostensible purpose of discovering whether intoxicating liquors were concealed thereon. Subsequently, it is alleged, relator came to Nebraska, was pursued and arrested, and the proceedings complained of followed.

Relator first argues that, when requisition was demanded and when it was honored, he was then under bail to answer a charge of grand larceny laid against him by the prosecutor of Douglas county, Nebraska. He contends that under the facts, and the terms of his bail bond, and the law, he cannot be lawfully extradited. He cites section 8990, Rev. St. 1913, which provides: "Whenever a demand is made upon the governor of this state by the executive of any other state or territory, in any case authorized by the Constitution and Laws of the United States, for the delivery of any person charged in such state or territory with any crime, if such person is not held in custody or under bail to answer for any offense against the laws of the United States or of this state, he shall issue his warrant, under the seal of the state, authorizing the agent who makes the demand, either forthwith or at such time as may be designated in the warrant, to take and transport such person to the line of this state, at the expense of such agent, and may also by such warrant require all peace officers to afford needful assistance in the execution thereof."

Relator contends that he comes within the purview of section 8990, and is immune, in that he is "under bail" to answer for the commission of an alleged offense against the laws of this state. The weight of authority does not sustain his argument. It has been held that the governor of the asylum state may waive the right of such state, even after conviction, to punish the prisoner for a crime for which he was convicted, and may honor a requisition issued by a demanding state. People v. Hagan, 34 Misc. 85, 69 N.Y.S. 475. In 11 R. C. L. 725, sec. 16, it is said: "But an accused fugitive cannot avail himself of the fact that he has been convicted of a crime in the asylum state and is out on bail pending his appeal, since that is a matter which the asylum state only can take advantage of."

Where a person is charged in two states with the commission of a separate offense in each, and has been arrested in one of them, such state has exclusive jurisdiction of the offender until the demands of its laws are satisfied. Nevertheless the governor of such state may honor the requisition of the governor of a demanding state and such surrender of the prisoner will operate as a waiver of the jurisdiction of the asylum state. In re Hess, 5 Kan.App. 763, 48 P. 596.

Relator contends that he was not in Iowa when the offense, there charged against him, was alleged to have been committed. On this point the evidence conflicts. However, we...