State ex rel. Petry v. Leidigh

• Decision Date: 18 February 1896
• Docket Number: 8242
• Citation: 66 N.W. 308,47 Neb. 126
• Parties: STATE OF NEBRASKA, EX REL. EDWARD PETRY, v. GEORGE W. LEIDIGH
• Court: Nebraska Supreme Court

66 N.W. 308

47 Neb. 126

STATE OF NEBRASKA, EX REL. EDWARD PETRY, v. GEORGE W. LEIDIGH

No. 8242

Supreme Court of Nebraska

February 18, 1896

ORIGINAL application for writ of habeas corpus.

WRIT DENIED.

J. O Detweiler, for petitioner:

The petitioner not having had an opportunity to return to the state from which he was taken, should only have been tried for the offense for which he was extradited. (9 Am. & Eng Ency. Law, 252; State v. Hill, 40 Kan. 338; In re Robinson, 29 Neb. 135; In re Cannon, 47 Mich. 481; Ex parte McKnight, 28 N.E. 1034 [O.]; Compton v. Wilder, 40 Ohio St. 130; Van Horn v. Great Western Mfg. Co., 37 Kan. 523; United States v Watts, 14 F. 130; Ex parte Hibbs, 26 F. 421; Ex parte Coy, 32 F. 911; United States v. Rauscher, 119 U.S. 407; State v. Vanderpool, 39 Ohio St. 278; Commonwealth v. Hawes, 13 Bush [Ky.] 700; State v. Simmons, 39 Kan. 262; State v. Ross, 21 Iowa 467; State v. Brewster, 7 Vt. 118; Dows' Case, 18 Pa. 37; Ker v. People, 110 Ill. 627.)

Habeas corpus is the proper writ upon which to procure the prisoner's discharge. (Ex parte McKnight, 28 N.E. 1034 [O.]; In re Robinson, 29 Neb. 135.)

A. S. Churchill, Attorney General, and George A. Day, Deputy Attorney General, for the state:

The court has jurisdiction over the person of one who has been extradited from a sister state to place him on trial for an offense other than that for which he was extradited, without his first having had an opportunity to return to the state of his asylum. (State v. Brewster, 7 Vt. 118; In re Noyes, 17 Albany L. J., 407; Kingen v. Kelley, 28 P. 36 [Wyo.]; State v. Glover, 17 S.E. [N. Car.] 525; In re Keller, 36 F. 682; Mahon v. Justice, 127 U.S. 700; State v. Ross, 21 Iowa 467; State v. Stewart, 19 N.W. 429 [Wis.]; Ham v. State, 4 Tex. App., 645; Williams v. Weber, 28 P. 21 [Colo.]; People v. Cross, 32 N.E. [N.Y.] 246; Commonwealth v. Wright, 33 N.E. 82 [Mass.]; Lascelles v. State, 16 S.E. 945 [Ga.]; State v. Kealy, 56 N.W. 283 [Ia.]; State v. Wenzel, 77 Ind. 428; Cook v. Hart, 146 U.S. 183; In re Miles, 52 Vt. 609.)

Upon the facts presented by the record habeas corpus is not petitioner's proper remedy. (Ex parte Fisher, 6 Neb. 309; Williamson's Case, 26 Pa. 17; Commonwealth v. Deacon, 8 S. & R. [Pa.] 72; Ex parte Toney, 11 Mo. 661; In re Betts, 36 Neb. 282; State v. Crinklaw, 40 Neb. 759; In re Havlik, 45 Neb. 747.)

OPINION

The opinion contains a statement of the case.

POST, C. J.

This is an application addressed to this court, in the exercise of its original jurisdiction, for a writ of habeas corpus in behalf of Edward Petry, who is, according to the complaint which is the basis of the proceeding unlawfully imprisoned by the respondent, George W. Leidigh, as warden of the penitentiary. It is unnecessary to copy at length from the record, as the material facts may be briefly stated, viz.: On the 4th day of April, 1895, application was made to the governor of this state for a requisition upon the governor of Illinois for the surrender of the relator, an alleged fugitive from justice, who was charged by the complaint of one Jewett with burglariously entering the house of the said complainant, in the county of Douglas, in the night season, and with stealing therefrom jewelry and clothing of the value of $ 50. Upon said application a requisition was allowed, in pursuance of which a warrant was issued by the governor of Illinois for the apprehension of the relator, and upon which the latter was, on March 7, arrested and immediately thereafter conveyed to Douglas county, in this state, for trial. Having waived a preliminary hearing upon the charge mentioned, he was committed to the jail of said county, and on the 3d day of May an information was filed by the county attorney charging him with the identical offense specified in the extradition papers, to which he interposed a plea of not guilty and was remanded for trial. On the 20th day of June, 1895, the said relator, without having had an opportunity to depart from this state, and without his consent, was taken before a magistrate in and for Douglas county and required to answer another and different charge, to-wit, of burglariously entering the house of one Thomas H. O'Neill and stealing therefrom jewelry of the value of $ 37.50, and upon which charge he was committed for trial. Afterward, during the May, 1895, term of the district court, an information was therein filed by the county attorney charging the relator with the last mentioned offense, and to which the latter, at a subsequent day of the term, entered a plea of not guilty, accompanied by an affidavit challenging the jurisdiction of the court over his person, in which the matters here stated are set out in detail. His objection to the jurisdiction of the court being overruled, a trial was had, resulting in a conviction of the offense charged in said information, and which judgment the respondent relies upon as a justification in this proceeding.

It is in the first place contended by the attorney general that, conceding the action complained of to be irregular, it is at most voidable, not affecting the jurisdiction of the district court, and that the relator's remedy is accordingly by direct proceeding to secure a review of the judgment of conviction. There appears to be no doubt of the soundness of that proposition, either upon reason or authority. The accused, in the language of the statute, "shall be taken to have waived all defects which may be excepted to by a motion to quash, or a plea in abatement, by demurring to an indictment, or pleading in bar, or the general issue." (Criminal Code, sec. 444.) The writ of habeas corpus, as said by this court in State v. Crinklaw, 40 Neb. 759, "is not a corrective remedy, and is never allowed as a substitute for appeal or writ of error," and the same principle is distinctly recognized in Ex parte Fisher, 6 Neb. 309; In re Betts, 36 Neb. 282, 54 N.W. 524; In re Havlik, 45 Neb. 747, 64 N.W. 234.

But there exists a fundamental objection to this proceeding. The right of a demanding state, upon the surrender of a fugitive from justice, to try him upon a charge other than that specified in the extradition papers has long been the subject of judicial controversy. Arrayed on one side are cases which appear to rest upon the inherent justice of the claim that a court cannot acquire jurisdiction over the person of one accused of crime through the fraud, duplicity, or abuse of process by an officer or agent entrusted with the impartial administration of the law. On the other hand are cases holding that a fugitive surrendered by one state on the demand of another may, under the constitution and the laws of the United States, be prosecuted for any extraditable offense committed within the territorial jurisdiction of the latter on the ground that there exists no right of asylum as applied to interstate extradition, and that it would be a useless and idle ceremony to return a fugitive to another state in order to again demand his surrender for trial. The constitutional provision upon the subject is found in section 2 of article 4 of the constitution of the United States, viz.: "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." The acts of congress bearing upon the subject (secs. 5278, 5279, Revised Statutes, U....