State ex rel. Toht v. McClure

• Decision Date: 05 May 1950
• Citation: 96 N.E.2d 308,87 Ohio App. 520
• Parties: , 43 O.O. 313 STATE ex rel. TOHT v. McCLURE et al.
• Court: Ohio Court of Appeals

Page 520

87 Ohio App. 520

96 N.E.2d 308, 43 O.O. 313

STATE ex rel. TOHT v. McCLURE et al.

Court of Appeals of Ohio, Montgomery County.

May 5, 1950.

Syllabus by the Court.

1. In a proceeding in habeas corpus, instituted by a fugitive from justice who is being held in this state on a warrant of extradition of a governor of a sister state, an Ohio court has no power to consider whether the constitutional rights of the petitioner are likely to be violated if he is returned to the sister state.

2. In such case, evidence of past acts of cruel and unusual punishment inflicted upon prisoners in such sister state are inadmissible as evidence that cruel and unusual punishment is presently being inflicted upon prisoners there or will likely be inflicted upon them in the future.

3. A petitioner will not be released on a writ of habeas corpus where there is shown only a mere expectancy of the violation of a constitutional right.

Strother B. Jackson and Frank W. Krehbiel, Dayton, for appellant.

Mathias H. Heck, Pros. Atty. and William H. Wolff, Dayton, for appellees.

WISEMAN, Judge.

This is an appeal on questions of law from the judgment of the Common Pleas Court of Montgomery County, denying to the relator, Peter Michael Toht, a release in a proceeding in habeas corpus.

The record shows that Honorable Fuller Warren, Governor of the state of Florida, dispatched a requisition to the Honorable Frank J. Lausche, Governor of the state of Ohio, for the extradition of the relator as an alleged fugitive from justice from the state of Florida, where he had been indicted for the crime of highway robbery and afterwards convicted, sentenced and committed. The relator is being held by the police authorities of the city of Dayton on an executive writ issued by the governor of Ohio.

The hearings on the extradition and on the petition for the writ of habeas corpus were combined.

The relator assigns as error:

First, that the judgment is against the manifest weight of the evidence and is contrary to law.

Second, that the judgment should have been in favor of the relator.

Third, that the court erred in overruling the motion for new trial.

Fourth, for all other errors of law apparent upon the face of the record.

The record shows that the relator was convicted of robbery in the state of Florida in 1930. He escaped from the Florida state prison on March 20, 1931. At the hearing in the Common Pleas Court the relator proffered evidence to the effect that while in the Florida prison he was subjected to cruel and unusual punishment; that he was put in leg irons which were never removed while in the prison; that he was forced to work on the roads with chains and irons on his legs; that when he became weak and ill he was placed in what is called 'the sweat box,' a space about four feet square and eight feet high, with no toilet facilities, where he was confined for a period of 10 days and given daily only a small piece of cornbread and a bucket of water. It must be observed that the acts took place approximately 20 years ago. However, relator offered to produce evidence to the effect that such treatment of the prisoners in the state of Florida has continued to the present time. The rejection of this evidence by the trial court is the principal error assigned.

Counsel for the relator set forth in their brief certain facts which do not appear in the record and which we are not permitted to consider.

The proffered testimony in this case is sufficient to arouse the sympathy of the court. However, we are required to apply and follow fundamental principles of law.

The question presented for determination is whether the courts of this state, in a habeas corpus proceeding, have the power to consider whether the constitutional rights of the relator are likely to be violated by a sister state. In determining this question we must assume that the treatment accorded the relator 20 years ago is still the practice in the state of Florida. We also assume, without definitely deciding, that such treatment constitutes cruel and unusual punishment in violation of the provisions of the Constitution and statutes of the state of Florida, and the Eighth and Fourteenth Amendments to the United States Constitution. It may be conceded that the Eighth Amendment to the United States Constitution is not a limitation upon the states, except as implemented by the due-process clause of the Fourteenth Amendment to the United States Constitution.

This same question was presented to the Court of Appeals for Cuyahoga county in Ex parte Quilliam, 89 N.E.2d 493, 55 Ohio Law Abst. 336. The syllabus, as reported in 55 Ohio Law Abst. is as follows:

'1. The courts of Ohio upon habeas corpus proceedings have no power to consider whether the constitutional rights of the relators are being violated by a sister state.

'2. A writ of habeas corpus will not be granted to relieve a person convicted of a crime in a sister state from extradition to that state.'

The court, 89 N.E.2d 493, 55 Ohio Law Abst. on page 337, stated:

'It is the view of this Court that the question here presented is one which seeks to invoke the jurisdiction of this Court to pass upon a question which it is beyond the power of this Court to consider, that is, whether or not a sister State is violating the Constitutional rights of one charged and convicted of crime by its courts.

'If the constitutional rights of a prisoner are being violated in the sister State, such question should be presented by proper proceedings to the courts of that State for remedy. The only remedy that would be available by granting the writs here requested would be to release the prisoners in the State of Ohio, thus in effect commuting their sentences for...