State ex rel. Rinne v. Gerber
| Decision Date | 20 May 1910 |
| Docket Number | 16,716 - (232) |
| Citation | 126 N.W. 482,111 Minn. 132 |
| Parties | STATE ex rel. AUGUST RINNE v. WILLIAM A. GERBER |
| Court | Minnesota Supreme Court |
On petition of August Rinne the district court for Ramsey county issued a writ of habeas corpus directed to William A. Gerber sheriff of that county. On the return day the writ was discharged, Hallam, J. From the order of discharge, relator appealed. Affirmed and writ discharged.
Indictment -- date of crime.
The date on which a crime is charged in an indictment to have been committed, when not an essential element of the crime itself, is not material.
Indictment -- proof.
It is sufficient to charge the crime to have been committed on some specified date prior to the finding of the indictment. This will admit proof of its commission on any date during the period covered by the statute of limitations.
Fugitive from justice -- definition.
A person who departs from a jurisdiction after having committed an act in furtherance of a crime subsequently consummated is a "fugitive from justice" and subject to extradition.
Schmidt & Newman, for appellant.
George T. Simpson, Attorney General, George W. Peterson, Assistant Attorney General, and H. L. Rockwood, County Attorney of Floyd county, Iowa, for respondent.
Relator, formerly a resident of the state of Iowa, with a wife and family still residing in that state, was indicted by the grand jury of the county of his former residence and formally charged with the desertion of his said wife, a crime under the laws of Iowa. Being within this state, the Governor of the state of Iowa made in due form of procedure requisition for his arrest and surrender to the authorities of that state for trial under said indictment. The requisition was honored by the Governor of this state, and a warrant was issued for relator's apprehension and return. He was arrested thereunder, and thereupon sued out a writ of habeas corpus, which, after hearing in the court below, was discharged, and relator remanded to the custody of respondent. Relator appealed.
On the receipt of a requisition for the extradition of a person charged with crime, it is the duty of the executive upon whom made to inquire and determine (1) whether the person sought stands charged, in proper form, with a crime committed in the demanding state; and (2) whether the person demanded is a fugitive from the justice of that state. If these matters be answered in the affirmative, a warrant of extradition will issue. When issued, the warrant is prima facie evidence of the existence of the essential facts, but may be overcome on habeas corpus by the person charged.
In the case at bar, the warrant of the Governor recites that relator is charged by indictment of the grand jury of Floyd county, Iowa, with desertion, a crime under the laws of that state. No question is made but that desertion is a crime in Iowa, and the warrant of the Governor becomes conclusive upon the subject. The warrant also recites, and the Governor so found, that relator is a fugitive from the justice of that state. This finding is challenged by relator, and this presents the sole ground upon which he seeks his discharge. We come, then, directly to that question.
The facts, either shown by the evidence or conceded by the parties, are as follows: Relator was formerly a resident of the state of Iowa, where he resided with his wife and family. His true name is August Rinne. He came to this state from his home in Iowa, leaving his wife and family in that state, and took up his residence in this state some time in April, 1909. Upon his arrival here he changed his name to August Franklin, and has been known here under that name. It is admitted that he "left with his wife," on departing from that state, a sum of money which he had on deposit in a bank (the amount is not agreed to), and that his wife has since occupied a home owned by him at Charles City, Iowa. He had not been indicted or otherwise charged with crime prior to his departure from that state. He claims to have come to this state with the consent of his wife, and it was agreed that he would so testify. He also claims that before coming here he gave his wife, in addition to the money on deposit in the bank already referred to, a promissory note against his wife's cousin for $1,100, an automobile, outstanding accounts amounting to from $100 to $150, household furniture, and $40 in cash; that since he came to Minnesota he has remitted to her about $100, and that she has never requested him to support her.
1. The indictment lays the date of the alleged crime on "March 8, 1910, and prior thereto." It is conceded that relator was in Minnesota on that date, and had been for nearly a year prior thereto. In view of this situation, it is the contention of the relator that it conclusively appears that he was not a fugitive from justice from the state of Iowa, either at the time the indictment was returned against him or on the date of the alleged crime; that he was not then within the state of Iowa, and could not have committed the alleged crime at that time. The contention is not sound.
We are not advised of the provisions of the Iowa statutes pertinent to the particular question. We do not take judicial notice thereof, and the common-law rule prevails. At common law it is necessary in an indictment to charge the offense alleged to have been committed on a day certain, and this is perhaps the general rule by statute in most of the states. But where the time is not of the essence of the offense itself, it is uniformly held sufficient to charge it to have been committed on any day previous to finding the indictment, and during the time within which the crime may be prosecuted. State v New, 22 Minn. 76; 22 Cyc. 313. The charge in this case is that relator deserted his wife on the eighth day of March, 1910, and prior thereto. It is clear that under this allegation the state could prove the offense to have been committed at any time during the period covered by the statute of limitations for the prosecution of the offense. This rule is well settled by the authorities. 1 Bishop Crim. Proc. 400; Vane's Case, J. Kel. 16; State v. Rundlett, 33 N.H. 70; State v. Gray, 39 Me. 353; Com. v. Kelly, 10 Cush. (Mass.) 69; State v. Curley, 33 Iowa 359; State v. Munson, 40 Conn. 475; State v. Tissing,...
To continue reading
Request your trial