State ex rel. Zack v. Kriss

• Decision Date: 08 June 1950
• Docket Number: 5.
• Citation: 74 A.2d 25,195 Md. 559
• Parties: STATE ex rel. ZACK v. KRISS.
• Court: Maryland Court of Appeals

74 A.2d 25

195 Md. 559

STATE ex rel. ZACK v. KRISS.

No. 5.

Court of Appeals of Maryland.

June 8, 1950

Reuben Shiling, Baltimore (Joel J. Hochman Baltimore, on the brief), for appellant.

Kenneth C Proctor, Asst. Atty. Gen. (Hall Hammond, Atty. Gen., Joseph D. Buscher, Sp. Asst. Atty. Gen., J. Bernard Wells State's Atty., Baltimore City, and Anselm Sodaro, First Asst. State's Atty., Baltimore City, on the brief), for appellee.

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

COLLINS, Judge.

This is an appeal from an order of Judge Robert France of the Supreme Bench of Baltimore, in a habeas corpus case, remanding Joseph Anthony Zack, appellant, to the custody of Captain Henry J. Kriss of the Baltimore Police Department, appellee.

The appellant is charged in Lebanon County, Pennsylvania, in six indictments for six separate acts of burglary. Warrants on these indictments were issued in Pennsylvania. On February 6, 1950 the Governor of Pennsylvania issued a requisition to the Governor of Maryland for the arrest and return of Zack to Pennsylvania for trial on the aforesaid charges. The appellant was placed under arrest. Uniform Criminal Extradition Act, Code 1939, Article 41, Sections 13-40 inclusive. An extradition hearing was held in the Attorney General's office in the State House at Annapolis by Mr. Buscher, a Special Assistant Attorney General of Maryland. Counsel appeared at that hearing for the appellant and testimony of witnesses was taken in an effort to show that appellant was in Maryland when the alleged crimes were committed and therefore he was not a fugitive from Pennsylvania. Testimony was also offered by the Commonwealth of Pennsylvania. Acting on the verbal report made by the Special Assistant Attorney General, Governor Lane issued the rendition warrant and appellant was arrested.

The appellant then filed a petition for a writ of habeas corpus, claiming he was not in Pennsylvania at the times alleged in the indictments. The writ was granted and a hearing was held before Judge France. At that hearing appellant was again represented by counsel. Testimony was offered both to sustain and contradict the contention that he was a fugitive from Pennsylvania. At the conclusion of the hearing the judge ordered that appellant be remanded to the appellee and from that order appellant appeals directly to this Court.

Code 1947 Supplement, Article 42, Section 3C, provides, among other things, that a person who is 'aggrieved by the order of the Judge in * * * remanding the person seeking said [habeas corpus] writ, may, within ten days after the passage of said order, apply to the Court of Appeals of Maryland for leave to prosecute an appeal therefrom.' The section further provides that, if this Court grants the application, the procedure 'thereafter shall be in conformity with the rules of the Court of Appeals, and the Court may affirm, reverse or modify the order appealed from * * *'. State ex rel. Gildar v. Kriss, Md., 62 A.2d 568, 569. The appellant did not follow the procedure set out in Code, Article 42, Section 3C, supra, but appealed directly to this Court. The Attorney General states that as appellant appealed immediately after the hearing, the State does not wish to raise the technical question as to whether the appeal is properly before this Court. In the interest of justice we will consider this question, before dismissing the appeal.

The appellant contends that the trial judge did not decide the question of whether the appellant was a fugitive from justice. With this contention we do not agree. Judge France, in his oral opinion, says in part: 'Under the Gildar case State ex rel. Gildar v. Kriss, Md., 62 A.2d 568, which possibly is your authority for what you have done today, you ask for testimony to be taken and for me to determine whether, we shall say, 'reasonable cause' has been shown to warrant the Governor in signing the papers which would take Joseph Zack to Pennsylvania for trial. As I said, except for the Gildar case, I would have said, No, you are not entitled to produce such testimony because you are substituting, in effect, my judgment for that of the Governor of the State.' Testimony was taken before Judge France as to whether there was reasonable cause to believe that Zack was in Pennsylvania at the time of the commission of the alleged crimes and Judge France signed the order remanding Zack to the custody of the appellee. He must therefore have decided that the prima facie presumption that Zack was within the State of Pennsylvania when the alleged offenses were committed, Illinois ex rel. McNichols v. Pease, 207 U.S. 100, 109, 28 S.Ct. 58, 52 L.Ed. 121, 125, had not been overcome and that Governor Lane was justified in signing the extradition papers. When the judge remanded the appellant, he acted on his finding that the appellant was a fugitive from justice.

The appellant further contends that the hearing held before the Special Assistant Attorney General did not comply with the requirements of Code, 1939, Article 41, Section 16. That Section provides: 'When a demand shall be made upon the Governor of this state by the Executive Authority of another state for the surrender of a person so charged with crime, the Governor may call upon the Attorney General or any prosecuting officer in this state to investigate or assist in investigating the demand, and to report to him the situation and circumstances of the person so demanded, and whether he ought to be surrendered.' The appellant contends that the Special Assistant Attorney General is not the proper person to conduct the investigation and make the report to the Governor because the statute permits 'no delegation by the attorney general of the duties required of him.' Appellant has apparently overlooked the provisions of Code 1947 Supplement, Article 32A, Section 4, which reads in part: 'The Deputy Attorney General and the Assistant and Special Assistant Attorneys General and the law clerks shall each perform such duties as the Attorney General may from time to time assign to them, and the Attorney General is hereby authorized to assign to them and each of them the performance, subject to his direction and control, of any of the duties required of him by law.' This last quoted section clearly permits the assignment here attacked. The testimony shows that Mr. Buscher, the Special Assistant Attorney General, recited in detail to Governor Lane the testimony produced. The Governor went over the evidence thoroughly and then signed the extradition papers.

The appellant finally argues that he has shown clearly and satisfactorily and beyond a reasonable doubt that he is not a fugitive from justice. In the case of Hyatt v. New York ex rel. Corkran, 1903, 188 U.S. 691, 23 S.Ct. 456, 458, 47 L.Ed. 657, the Supreme Court of the United States said: 'We are of opinion that the warrant of the governor is but prima facie sufficient to hold the accused, and that it is open to him to show by admissions, such as are herein produced, or by other conclusive evidence, that the charge upon which extradition is demanded assumes the absence of the accused person from the state at the time the crime was, if ever, committed. * * *...