State Ex Rel. Florio v. Mccreary

• Citation: 165 So. 904,123 Fla. 9
• Parties: STATE ex rel. FLORIO v. McCREARY, Chief of Police.[*]
• Decision Date: 21 February 1936
• Court: Florida Supreme Court

165 So. 904

123 Fla. 9

STATE ex rel. FLORIO v. McCREARY, Chief of Police.^[*]

Florida Supreme Court, Division A.

February 21, 1936

Error to Circuit Court, Dade County; Paul D. Barns, Judge.

Habeas corpus proceeding by the State, on the relation of Anthony Florio, named Antonio Florio, against S.D. McCreary, Chief of Police of the City of Miami. To review an order, relator brings error.

Reversed and remanded.

BUFORD J., dissenting.

COUNSEL

Hendricks & Hendricks, of Miami, for plaintiff in error.

Cary D Landis, Atty. Gen., and Roy Campbell, Asst Atty. Gen., for defendant in error.

OPINION

BROWN Justice.

This writ of error brings before us for review a judgment of the circuit court for Dade county in habeas corpus proceedings remanding the petitioner to custody. The return of the respondent officer showed that petitioner had been arrested on a 'fugitive warrant,' and that after his arrest the Governor had granted extradition. The petitioner traversed the allegations of the answer.

Upon the hearing, it developed that the petitioner was being held under an executive warrant of extradition, duly executed by the Governor of this state, which was in the usual form and regular upon its face, and which was introduced in evidence by respondent. It recited among other things, that the executive authority of the demanding state had filed with the executive authority of this state 'a copy of affidavit made before a Connecticut magistrate charging the said person so demanded with having committed in said State of Connecticut against the laws of said State of Connecticut the crime of conspiracy and theft and which is certified as authentic by the Executive of said State of Connecticut.'

The respondent also offered in evidence what purported to be certain papers which were before the Governor of this state when he issued the executive warrant, though it was not clearly shown that all the papers which were before the Governor were introduced in evidence. The demand or requisition of the Governor of Connecticut was not introduced nor any certificate of any sort by him authenticating any of the papers which were introduced.

It is well settled that, where the executive warrant of extradition is regular and sufficient upon its face, it constitutes prima facie evidence of the facts therein set forth and of the authority of the authorized officer to arrest and detain the petitioner in custody for the purpose stated in such warrant; the burden of overcoming the prima facie case made by the warrant being upon the accused. Chase v. State, 93 Fla. 963, 113 So. 103, 54 A.L.R 271.

But the respondent officer in this case, represented by an assistant state attorney, went further and introduced in evidence what purported to be the papers, or some of them, upon which the Governor of Florida acted. If we would be justified in assuming that these were all the papers that the Governor had before him at the time he issued his warrant, the Governor would not have been authorized, under the controlling federal statute (18 U.S.C.A. § 662), to issue it, as they were not shown to have been authenticated by the Governor of Connecticut. The papers introduced were, first, a copy of an undated and unverified information, charging Antonio Florio and two others, Malavisa and Bertini, in two counts, with conspiracy to commit, and the actual commitment, of the theft of merchandise of the value of $11,000, on May 17, 1933, which was signed by the assistant city attorney of New Haven, Conn., and filed in the city court of that city, as shown by the certificates of the clerk and the judge of that court.

Even if this information had been authenticated by the Governor of Connecticut, it is doubtful whether it would have been a sufficient basis for the issuance of the warrant by the Governor of this state. The governing federal statute requires that, along with the requisition of the executive of the demanding state, he shall furnish the executive of the asylum state with a copy of 'an indictment found' or an 'affidavit made before a magistrate' of the state or territory where the crime was committed, charging the person demanded with having committed treason, felony, or other crime, and certified as authentic by such Governor of the demanding state. State ex rel. Peck v. Chase, 91 Fla. 413, 107 So. 541. The question of the sufficiency of an unverified information as a basis for extradition proceedings was discussed, but not decided, in the case of Mitchell v. Stoutamire, 113 Fla. 822, 828-832, 152 So. 629, 631, 632. See, also 29 C.J. 73, 74. And it is not necessary for us to decide it here.

There was also introduced in evidence an affidavit, made before a Connecticut magistrate, a justice of the peace for New Haven county, by Joseph Bertini, who was named in said information as one of Florio's coprincipals. This affidavit is evidentiary in its nature, and contains some hearsay. While it does not make a straight charge of crime in the usual formal way where an affidavit is made as basis for the issuance of a warrant, the facts stated, if true, amount to a showing that Florio was a party to a conspiracy to 'hi-jack' a truck load of merchandise from a truck belonging to 'Blindy's Motor Express Co.,' and had possession of the merchandise shortly after it was stolen. Bertini did not connect himself of Florio with the actual taking. This affidavit was probably made for the use of the prosecuting attorney. The same might be said of the affidavit of one Raill, the truck driver, who stated that Bertini arranged with him, for a...