State ex rel. Lea v. Brown

Decision Date09 December 1933
PartiesSTATE ex rel. LEA et al. v. BROWN et al.
CourtTennessee Supreme Court

Appeal in Error from Circuit Court, Montgomery County; John T Cunningham, Judge.

Habeas corpus proceeding by the State, on the relation of Luke Lea and another, against Lawrence E. Brown and others. To review a judgment dismissing the petition upon a demurrer thereto the relators appeal in error.

Judgment affirmed.

L. E Gwinn, of Memphis, John S. Daniel and Collier Goodlett, both of Clarksville, and J. G. Lackey and Colton, Dickson & Tillman, all of Nashville, for plaintiffs in error.

Zeb Nettles, of Asheville, N. C., A. A. F. Seawell, of Raleigh, N. C., and Roberts & Roberts, of Nashville, for defendants in error.


The relators, held in custody under a warrant of the Governor of Tennessee issued pursuant to a demand of the Governor of North Carolina for their return to that state as fugitives from justice, filed their petition for the writ of habeas corpus to test the validity of the Governor's warrant. The trial court dismissed the petition upon demurrer, and the relators have appealed in error.

The statutes of Tennessee authorize and direct the arrest, and delivery to another state, of persons who are "subject by the constitution and laws of the United States to be delivered over upon demand of the governor of such state or territory." Code 1932, § 11927.

The Constitution and statutes of the United States direct such rendition of all persons charged in the demanding state with crime, who shall "flee from justice." Every such person is required to be transported, upon proper demand, to the state "from which he has fled." Constitution, art. 4, § 2; U.S. Code, title 18, §§ 662, 663 (18 USCA §§ 662, 663).

Whether the relators are fugitives from justice, subject to rendition upon demand of the state of North Carolina, is a question of fact. If they are not fugitives from justice, within the meaning of the Constitution and laws cited, they are entitled to be discharged in this proceeding. South Carolina v. Bailey, 289 U.S. 412, 53 S.Ct. 667, 77 L.Ed. 1292; Illinois ex rel. McNichols v. Pease, 207 U.S. 100, 28 S.Ct. 58, 52 L.Ed. 121.

A fugitive from justice, within the sense of this inquiry, is necessarily one who, being charged with crime in the demanding state, has fled therefrom. The statute enacted by the Congress so construes and defines the constitutional provision.

The facts of the case before us, established by the petition of the relators and the exhibits thereto, are that the relators, in March, 1931, were charged by indictments in North Carolina with conspiring with others to violate certain provisions of the banking laws of North Carolina denouncing embezzlement and misapplication of the funds of a bank. Neither of the relators was in the state of North Carolina at or near the time such conspiracy is alleged to have been formed nor when any overt act was committed in furtherance thereof, but both of them "voluntarily entered their appearance in the Superior Court of Buncombe County (N. C.) and gave bond to answer the charges in said indictments." They were not tried upon the indictments to answer which they voluntarily entered their appearance, but on July 27, 1931, two other indictments were returned against them, after which the original indictments were dismissed. The new indictments were then consolidated for trial, and upon them relators were tried and convicted. The new indictments were similar in form to the first, but differed in scope and character, in that additional conspirators were named; and, in the second of the two new indictments, now known as the seventh count, the relators were for the first time charged with consummating the alleged conspiracy, through the agency of their coconspirators who were in North Carolina, by actual misappropriation and embezzlement of funds. That the charge made by the new indictments was, however, essentially the same as that contained in the first indictment, was recognized by the relators when they pleaded in abatement to the new indictments that the original indictments undertook to charge them "with the same alleged offenses," and they therefore pleaded "former suits pending." It was no doubt because of this plea that the original indictments were dismissed.

Counsel are incorrect in saying that the conspiracy charge in the seventh count of the indictment was "waived." It was expressly relied upon to establish the relators' responsibility to the state of North Carolina for the overt acts done within the state in furtherance of the conspiracy, and the jury were so instructed by the trial judge in submitting the case for their verdict.

After their conviction in the superior court of Buncombe county, the relators were released on bail pending disposition of their appeal to the Supreme Court of North Carolina. State v. Lea, 203 N.C. 13, 35; 164 S.E. 737. Upon affirmance of the conviction and remand of the case, they failed to appear, and default judgments were entered on their appearance bonds.

The addition of new charges to those already made, and the substitution of new indictments for those to which the relators had entered their voluntary appearance, violated no constitutional right of the relators. This necessarily follows from the rule that, even though a person is brought into the jurisdiction of a state by extradition, he may be there tried "for any other offense than that specified in the requisition for his rendition," without violation of any right, privilege, or immunity secured to him by the Constitution and laws of the United States. Lascelles v. Georgia, 148 U.S. 537, 13 S.Ct. 687, 689, 37 L.Ed. 549. The situation in which relators were placed presented a question of ethical policy on the part of the North Carolina courts, but not a question of individual right arising under the Constitution and laws of the United States. State v. McNaspy, 58 Kan. 698, 50 P. 895, 897, 38 L. R. A. 756. The relators were therefore legally and without violation of any of their constitutional rights within the custody and jurisdiction of the North Carolina court, under the indictments on which they were convicted.

On the facts stated, the relators insist that they are not fugitives from justice in North Carolina, for the reason that they were not in the state when the crime charged against them was committed.

There is no language in the constitutional provision, nor in the statute enacted by Congress, expressly making presence in the demanding state, at the time the crime was committed, essential to the right of extradition. The language of the Constitution (Const. U.S. art. 4, § 2) is that the right shall exist with respect to one "who shall flee from Justice, and be found in another State." The statute (18 USCA § 662) gives effect to that provision by directing that the demand shall be made by the Governor of the state "from whence the person so charged has fled."

"The constitutional provision that a person charged with crime against the laws of a state, and who flees from its justice, must be delivered up on proper demand, is sufficiently comprehensive to embrace any offense, whatever its nature, which the state, consistently with the Constitution and laws of the United States, may have made a crime against its laws." Appleyard v. Massachusetts, 203 U.S. 222, 227, 27 S.Ct. 122, 123, 51 L.Ed. 161, 163, 7 Ann. Cas. 1073. "The provision of both the constitution and the statutes extends to all crimes and offenses punishable by the laws of the state where the act is done." Lascelles v. Georgia, supra.

The Supreme Court has not undertaken to limit or restrict the scope and application of the constitutional direction by strict construction. On the contrary, it has declared that "a faithful, vigorous enforcement of that stipulation is vital to the harmony and welfare of the states"; and that it should "be not so narrowly interpreted as to enable offenders against the laws of a state to find a permanent asylum in the territory of another state." Appleyard v. Massachusetts, supra. The constitutional and statutory provisions "have not been construed narrowly and technically by the courts as if they were penal laws, but liberally, to effect their important purpose." Biddinger v. Commissioner of Police, 245 U.S. 128, 133, 38 S.Ct. 41, 43, 62 L.Ed. 193, 198.

In Hyatt v. New York, 188 U.S. 691, 23 S.Ct. 456, 459, 47 L.Ed. 657, interstate extradition was denied on proof that the accused was not in the demanding state when the alleged crime was committed, and it was held that the constructive presence alone of the accused in the demanding state was not enough to authorize his delivery. This ruling was made with respect to one who had never been physically in the custody of the state in which he was charged with crime. The only reason assigned for the ruling was that, having been beyond the limits of the state when the crime was committed, the accused had not "fled" therefrom. The court said: "How can a person flee from a place that he was not in?"

In this ruling the Supreme Court cited with approval In re Mohr (1883) 73 Ala. 503, 49 Am. Rep. 63, wherein the Supreme Court of Alabama qualified and explained its similar ruling, as follows: "Such at least is the rule, unless the criminal afterwards goes into such State and departs from it, thus subjecting himself to the sovereignty of its jurisdiction. The reason is, not that the jurisdiction to try the crime is lacking, but that no one can in any sense be alleged to have 'fled' from a State, into the domain of whose territorial jurisdiction he has never been corporally present since the commission of the crime." This excerpt is quoted in full, without exception, in State v....

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