State ex rel. Foster v. Uttech

• Decision Date: 01 July 1966
• Citation: 31 Wis.2d 664,143 N.W.2d 500
• Parties: STATE ex rel. Isaac FOSTER, Appellant, v. Orlie C. UTTECH, Sheriff, Dodge County, Wisconsin, Respondent.
• Court: Wisconsin Supreme Court

Page 500

143 N.W.2d 500

31 Wis.2d 664

STATE ex rel. Isaac FOSTER, Appellant, v. Orlie C. UTTECH, Sheriff, Dodge County, Wisconsin, Respondent.

Supreme Court of Wisconsin.

July 1, 1966.

Grootemaat, Cook & Franke, Milwaukee, Francis R. Croak and David J. Hase, Milwaukee, of counsel, for appellant.

Bronson C. LaFollette, Atty. Gen., William A. Platz, Donald Johns, Asst. Attys. Gen., Madison, for respondent.

HALLOWS, Justice.

The issue presented is whether Foster is legally detained upon the governor's warrant which enjoys a prima facie presumption of legality. More precisely stated, can this court in testing the legality of the arrest in a habeas corpus proceeding go behind the governor's rendition warrant and examine the affidavit and warrant and other documents issued in Indiana to determine whether they meet the constitutional requirements for arrest for extradition purposes and the statute of Wisconsin for such purpose?

The constitution of the United States in Article IV, Section 2, provides, 'A person charged in any state with treason, felony, or other crime, who shall flee from justice, and be found in another state, shall, on demand of the executive authority of the state from which he fled, be delivered up, to be removed to the state having jurisdiction of the crime.' This constitutional requirement was implemented by federal legislation to provide for the procedure in demanding extradition. 18 U.S.C.A. § 3182. This section provides that whenever the executive authority of a state demands a person as a fugitive from justice and produces a copy of an indictment found or of an affidavit made before a magistrate charging the person demanded with having committed the crime certified as authentic, the executive authority of the state to which the person has fled will cause him to be arrested and to be delivered to the agent of the demanding state.

Many states, however, including Wisconsin and Indiana, have enacted the Uniform Criminal Extradition Act as legislation ancillary to and in aid of the federal constitution and statute. In sec. 964.02 of this act, the duty of the governor of this state to deliver up a fugitive from justice to the demanding state is made subject to the qualifications of the chapter, the provisions of the constitution of the United States, and the acts of congress. In sec. 964.03, Stats., it is provided that no demand for extradition shall be recognized unless it is in writing showing the accused was present in a demanding state at the time of the alleged crime and that he fled from that state, and accompanied by a copy of either the indictment found, or of an information supported by an affidavit or by a copy of an affidavit made before a magistrate there, together with a copy of any warrant which was issued thereon. ¹ The indictment, information or affidavit made before the magistrate must substantially charge the person demanded with having committed a crime under the law of that state and be authenticated by the executive authority making the demand.

The act further provides the governor may investigate the case, sec. 964.04, Stats., and if he decides the demand should be complied with shall sign his warrant of arrest which warrant must substantially recite the facts necessary to the validity of its issuance, sec. 964.07, Stats. However, no person arrested upon the governor's warrant may be delivered to the agent of the demanding state unless he is first taken forthwith before a judge of a court of record in this state, who shall inform him of the demand made for his surrender and of the crime with which he is charged and that he has a right to demand and procure legal counsel and if the prisoner or his counsel shall state he or they desire to test the legality of his arrest, the judge of such court of record shall fix a reasonable time within which to allow him to apply for a writ of habeas corpus. Sec. 964.10, Stats.

It is clear that evidence which goes to the guilt or innocence of the accused may not be inquired into, either by the governor or any proceeding after the demand for extradition if a charge of a crime in legal form has been presented to the governor except as such issue is indirectly involved in the identification of the person held as the one charged with the crime, sec. 964.20, Stats. While evidence in the trial court was taken in this case as to what probable cause the police officer had for swearing to the affidavit on which the warrant was issued, we do not think this type of evidence goes to guilt or innocence because that issue is not decided. Such evidence goes to the validity of the warrant. In State ex rel. Kojis v. Barczak (1953), 264 Wis. 136, 58 N.W.2d 420, and in State ex rel. Krueger v. Michalski (1957), 1 Wis.2d 644, 85 N.W.2d 339, this court probably took a limited and narrow view of what evidence may be admitted to go behind the governor's warrant, but we do not in this case reach the scope of the evidence because the Indiana documents on their face are insufficient to sustain the rendition warrant of the governor.

We think this court in a habeas corpus proceeding may examine into constitutional questions affecting the legality of the arrest in this state for extradition at least where constitutional standards are shown not to have been complied with on the face of the documents. If this court was restricted solely to the questions of identity, of fugitive status, and of whether an extraditable crime is charged, there would be very little purpose in providing a statutory right to a habeas corpus 'to test the legality of his arrest.' The legality of arrest on the governor's warrant at most is only prima facie valid. Ex parte Cohen (1952), 23 N.J.Super. 209, 92 A.2d 837, aff. 12 N.J. 362, 96 A.2d 794. Not to examine the sufficiency of the foundation documents on direct attack as in a habeas corpus proceeding would make the presumption conclusive. Nor is there any purpose in requiring copies of the information or affidavit and warrant if they are not to be examined to see if the demand or requisition is proper and can serve as a valid basis for a governor's rendition warrant.

In a recent case of State v. Limberg (1966), Minn., 142 N.W.2d 563, the Minnesota court under a section similar to sec. 964.03 examined the underlying affidavit and warrant of the state of Michigan. In discussing the additional point involving whether the accused was in Michigan at the time of the extradition, the court asked, 'Is the presumptive effect of the rendition warrant when supported by affidavits accompanying the demand for extradition sufficient in itself to repel the positive testimony of the appellant that he was not present in the demanding state?' The court held it was not and it was incumbent upon the demanding state to present some testimony to contradict the positive declaration. In Kojis this court examined the copy of the affidavit and warrant upon which the requisition was made and which furnished the basis for the governor's warrant in order to determine whether they complied with sec. 964.03, Stats., in substantially charging the person with having committed a crime in North Carolina and this in view of the certification by the governor of North Carolina that the affidavit and warrant charged a crime. In State ex rel. Wells v. Hanley (1947), 250 Wis. 374, 27 N.W.2d 373, this court, while it refused to inquire on habeas corpus into the legality of an Alabama imprisonment because that issue on habeas corpus was not before it, stated the purpose of habeas corpus was to inquire into the detention under the fugitive warrant issued in this state. See State ex rel. Keehn v. Capelle (1962), 17 Wis.2d 116, 115 N.W.2d 487; also State v. Klein (1964), 25 Wis.2d 394, 130 N.W.2d 816, cert. denied Sterger v. Wisconsin, 380 U.S. 951, 85 S.Ct. 1083, 13 L.Ed.2d 969.

In State ex rel. White v. Simpson (1965), 28 Wis.2d 590, 137 N.W.2d 391, we determined the constitutional guaranties as interpreted by the United States supreme court required warrants of arrests to be issued by independent magistrates and upon a showing of probable cause. We stated:

'As a result of the United States supreme court cases, it is constitutionally essential that the magistrate be mindful of the underlying circumstances before he authorizes the issuance of a warrant. The magistrate may not accept without question the suspicions or conclusions of a complainant but, on the contrary, must determine the existence of probable cause after being apprised of the relevant facts. In performing this function, the magistrate or court commissioner serves as a judicial officer and must act in a neutral and detached manner. He must receive an adequate answer to this hypothetical question: 'What makes you think that the defendant committed the offense charged?' Jaben v. United States (1965), 381 U.S. 214, 224, 85 S.Ct. 1365, 1371, 14 L.Ed.2d 345.'

The Indiana proceedings do not meet this standard....