State ex rel. Gildar v. Kriss

• Decision Date: 08 December 1948
• Docket Number: 27.
• Parties: STATE ex rel. GILDAR v. KRISS, Captain of Detectives.
• Court: Maryland Court of Appeals

62 A.2d 568

191 Md. 568

STATE ex rel. GILDAR v. KRISS, Captain of Detectives.

No. 27.

Court of Appeals of Maryland

December 8, 1948

Appeal from the Baltimore City Court; Herman M. Moser, Judge.

Habeas corpus proceeding by the State of Maryland, on the relation of Sam Gildar, for release from the custody of Henry J Kriss, Captain of Detectives of Baltimore, under an extradition warrant. From an order remanding petitioner to respondent's custody, petitioner appeals.

Affirmed.

Samuel K. Dennis and Ellis Levin, both of Baltimore, for appellant.

Hall Hammond, Atty. Gen., and William J. O'Donnell, Asst State's Atty., of Baltimore (Harrison L. Winter, Asst Atty. Gen. and J. Bernard Wells, State's Atty., of Baltimore, on the brief), for appellee.

Before MARBURY, C.J., and DELAPLAINE, COLLINS, HENDERSON, and MARKELL, JJ.

MARKELL Judge.

This is an appeal, by leave granted by this court (Code, Art. 42, sec. 3C), from an order remanding petitioner for a writ of habeas corpus granted pursuant to the Uniform Criminal Extradition Act. Art. 41, sec. 22. The right of appeal in habeas corpus cases 'shall not apply to any case unless the petitioner is detained for or confined as the result of a prosecution for a criminal offense.' Art. 42, sec. 3D, Acts of 1945, ch. 702. In the instant case petitioner is detained in Maryland, for extradition from Maryland, as the result of a prosecution for conspiracy to violate the prohibition laws of North Carolina. Ordinarily a statute is not applicable extraterritorially, but only to acts done within the jurisdiction, though any extradition statute is an exception to this generalization. At any rate petitioner is detained in Maryland, as the result in Maryland of a prosecution for a criminal offense. We think the right of appeal under Art. 42, secs. 3C and 3D, is applicable.

The case presents questions as to the constitutionality and application of section 18 of the Uniform Criminal Extradition Act (Art. 41, sec. 18; Acts of 1937, ch. 179), which provides: '(Extradition of Persons Not Present in Demanding State at Time of Commission of Crime.) The Governor of this state may also surrender, on demand of the Executive Authority of any other state, any person in this state charged in such other state in the manner provided in Section 15 with committing an act in this state, or in a third state, intentionally resulting in a crime in the state whose Executive Authority is making the demand, and the provisions of this subtitle not otherwise inconsistent, shall apply to such cases, even though the accused was not in that state at the time of the commission of the crime, and has not fled therefrom.'

Petitioner is in custody, pursuant to a warrant of the Governor of Maryland, to be delivered to an agent of the State of North Carolina. From a North Carolina warrant and also from affidavits, all of which are part of the demand of the Governor of North Carolina to the Governor of Maryland, it clearly appears that it is charged that petitioner and others on or about July 23, 1947, 'as well before as after said date,' in Guilford County, North Carolina, conspired to violate the laws of North Carolina, 'by engaging and carrying on the business of transporting, handling, dealing in and selling spiritous liquors, both at wholesale and retail, and * * * in carrying out * * * said conspiracy,' they on July 21, 1947, purchased in Baltimore, Maryland, 215 cases of such liquors and transported them by truck from Baltimore into Guilford County, North Carolina, for the purpose of sale, contrary to law, and 'have transported and sold to various bootleggers in North Carolina from February 19, 1947 to July 31, 1947 a total of 54,426 cases, * * * all in flagrant violation of the laws of North Carolina.' One of the affidavits, not a part of the warrant, alleges that petitioner 'was not present in the State of North Carolina at the time of the commission of the crime of which he is charged, and has not fled from said State but * * * while in the State of Maryland entered into a conspiracy with other defendants in North Carolina intentionally resulting in the commission of a series of crimes in Guilford County, North Carolina.' This much clearly appears, though the North Carolina papers are crudely and verbosely drawn, on a printed form for extradition of fugitives from justice pursuant to the applicable federal statutes, modified and supplemented by inept references to the section of the North Carolina Uniform Criminal Extradition Act, G.S. § 15-60, which is applicable to extradition from North Carolina, not from Maryland into North Carolina, but is the same as section 18 of the Maryland act. The warrant of the Governor of Maryland, issued after a hearing, recites that it appears that petitioner had committed an act in this state that intentionally resulted in a crime in North Carolina and that the demand by the Governor of North Carolina is accompanied by a copy of a warrant and affidavit charging petitioner with conspiracy. Section 18 of the Maryland Act authorizessurrender of any person in this state charged in another state 'in the manner provided in Section 15' with committing an act in this state intentionally resulting in a crime in the demanding state. Section 15, relating to fugitives from justice, authorizes extradition only on a demand in writing, 'accompanied * * * by a copy of an affidavit made before a Justice of the Peace or Magistrate * * *, together with a copy of any warrant which was issued thereupon.' On demand for extradition of a fugitive from justice a state may require less (but not more) than is required by the federal statutes. Innes v. Tobin, 240 U.S. 127, 36 S.Ct. 290, 60 L.Ed. 562.

We think the requirements of section 18 (and section 15 so far as incorporated by reference) have been complied with, and that the demand for extradition is not vitiated by surplusage in the papers. It is not inconsistent to lay the venue of the crime, in the warrant, in North Carolina, though petitioner was not in North Carolina. 'Acts done outside a jurisdiction, but intended to produce and producing detrimental effects within it, justify a state in punishing the cause of the harm as if he had been present at the effect, if the state should succeed in getting him within its power.' Strassheim v. Daily, 221 U.S. 280, 285, 31 S.Ct. 558, 560, 55 L.Ed. 735. Until 1894, if not since, in North Carolina a criminal act was punishable only where it took effect, not where it was committed. State v. Hall, 115 N.C. 811, 20 S.E. 729, 28 L.R.A. 289, 44 Am.St.Rep. 501. Under the Uniform Criminal Extradition Act, extradition was prohibited by the court in Cassis v. Fair, 126 W.Va. 557, 29 S.E.2d 245, 151 A.L.R. 233, on the ground that the indictment was bad under the laws of Ohio, the demanding state, and in Ennist v. Baden, 158 Fla. 141, 28 So.2d 160, and In re Brewer, 61 Cal.App.2d 388, 143 P.2d 33, on the ground that the warrant, which charged abandonment or desertion and non-support of a child in another state, was insufficient. In Culbertson v. Sweeney, 70 Ohio App. 344, 44 N.E.2d 807, appeal dismissed, 140 Ohio St. 426, 45 N.E.2d 118, in which grant of extradition was sustained, the accused was indicted as an accomplice in a conspiracy to cause an abortion and the crime was alleged to have been committed in New York. Cf. Ex parte Campbell, 147 Neb. 820, 25 N.W.2d 419. In cases of fugitives from justice, under the Constitution of the United States, questions as to the sufficiency of the indictment are for the courts of the demanding state to determine. Drew v. Thaw, 235 U.S. 432, 35 S.Ct. 137, 59 L.Ed. 302. In the instant case the warrant charges specific acts done in Maryland to carry out a crime in North Carolina. Under the Uniform Act 'the guilt or innocence of the accused * * * may not be inquired into by the Governor or in any proceeding after the demand for extradition,' except as it may be involved in identifying the person held as the one charged. Art. 41, sec. 31. We think the warrant sufficiently charges acts done in Maryland intentionally resulting in a crime in North Carolina, and also that the purpose and effect of the Uniform Act is to deal with such charges in the same way as with fugitives from justice and therefore to leave to the courts of the demanding state questions as to the technical sufficiency of the indictment or warrant.

At the hearing on the writ of habeas corpus, and at the argument in this court, it was admitted, indeed asserted, on behalf of petitioner, that: He is and was an officer of a corporation engaged in the sale of liquors at wholesale in Baltimore such liquors are sold to buyers who take them in Maryland and haul them away in their trucks; the names and addresses of all North Carolina buyers and the amounts of liquor sold (though delivered in Maryland) are reported to federal and Maryland law enforcement agencies as required by law; the North Carolina authorities are regularly given this information by the Maryland authorities. There was uncontradicted evidence that: for the first months of operation in Maryland, from February through July, 1947, out of sales aggregating 42,665 cases about 99.9 per cent were made to North Carolina addressees; one customer, an alleged co-conspirator, owned a truck, with a North Carolina license, with a false panel which resembled...