State v. Allen

• Decision Date: 19 May 1922
• Citation: 83 Fla. 655,92 So. 155
• Parties: STATE ex rel. MYERS v. ALLEN, Sheriff.
• Court: Florida Supreme Court

92 So. 155

83 Fla. 655

STATE ex rel. MYERS v. ALLEN, Sheriff.

Florida Supreme Court

May 19, 1922

Error to Circuit Court, Dade County; H. Pierre Branning, Judge.

Proceedings by the State of Florida, on the relation of J. D. Myers against Louis A. Allen, Sheriff of Dade County, for writ of habeas corpus. Motion for writ denied and prisoner remanded to the custody of the sheriff, and the relator brings error.

Judgment affirmed.

Syllabus by the Court

SYLLABUS

It is not imperative that affidavit charging the offense shall show on its face that it was made before a magistrate. In extradition proceedings it is not imperative that the affidavit charging the offense shall show on its face that it was made before a magistrate, but the Governor must have proof of that fact before him, and when extradition is resisted, the fact that the affidavit was made before a magistrate may be shown by the sheriff's return on habeas corpus proceedings.

Sufficiency of complaint is not to be tested by law governing criminal prosecutions in state from which fugitive is sought to be extradited. The sufficiency of a complaint is not to be tested in habeas corpus proceedings by the law governing criminal prosecutions in the state from which a fugitive from justice is sought to be extradited.

In determining sufficiency of affidavit charging a fugitive with a crime, it is only necessary to consider whether it shows satisfactorily that he has been charged with a crime. In determining if the affidavit on indictment charging a fugitive from justice with a crime is sufficient, it is only necessary to consider whether it shows satisfactorily that the fugitive has been in fact, however inartificially charged with crime in the state from which he has fled.

On habeas corpus in determining whether petitioner is a fugitive from justice, the court may consider the demanding state's statute of limitations. In determining if a petitioner in habeas corpus proceeding is a fugitive from justice, the court may consider the statute of limitations of the demanding state, to establish the fact that he is not a fugitive from justice.

Where there is no doubt of the applicability of the limitation statute to the offense charged against fugitive, he should be discharged on habeas corpus. A person who is not subject to prosecution for crimes in the demanding state is not a fugitive from justice; and, where there is no doubt of the applicability of the statute of limitations to the offense with which he is charged, he should be discharged on habeas corpus proceedings.

Court will not on habeas corpus construe limitation statute of demanding state, where other states differ as to construction of similar statute. Where statutes of limitations similar to that of the demanding state have been differently construed by the supreme appellate courts of other states, and there has been no construction of the statute of limitations of the demanding state by its court of last resort, this court will not undertake to construe it, but will leave to the demanding state the construction of its own statute.

Identity of the person taken in custody with the person claimed as a fugitive must be clearly established. The identity of the person taken in custody with the person who is claimed as a fugitive from justice must be clearly established, and that the person arrested and the person named in the requisition are in fact one and the same individual.

Evidence held sufficient to establish identity of person held in custody with person named in requisition. Evidence adduced before the circuit judge who heard the application for discharge under habeas corpus proceedings examined, and found sufficient to establish the identity of the person held in custody with the person named in the requisition.

COUNSEL

James M. Carson and Worth W. Trammell, both of Miami, for plaintiff in error.

Rivers Buford, Atty. Gen., J. B. Gaines, Asst. Atty. Gen., and Fred T. Myers, of Tallahassee, for defendant in error.

OPINION

BROWNE C.J.

A writ of habeas corpus was issued by this court and made returnable before Hon. H. Pierre Branning, judge of the Eleventh judicial circuit of Florida, who heard and determined the matter on a motion to quash the return of the sheriff. The motion was denied, and the prisoner remanded to the custody of the sheriff of Dade county. From this order writ of error was taken to this court.

Section 2, art. 4, of the Constitution of the United States, provides:

'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.'

This provision of the Constitution imposes a high and imperative duty upon the chief executive of the state of deliver up criminals fleeing from justice, for removal to the state from which they fled.

As was said in Appleyard v. Commonwealth of Massachusetts, 203 U.S. 222, 27 S.Ct. 122, 51 L.Ed. 161, 7 Ann. Cas. 1073:

'A faithful, vigorous enforcement of that stipulation is vital to the harmony and welfare of the states. And while a state should take care, within the limits of the law, that the rights of its people are protected against illegal action, the judicial authorities of the Union should equally take care that the provisions of the Constitution 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.'

To carry out this provision of the Constitution, Congress has enacted that----

'Whenever the executive authority of any state or territory demands any person as a fugitive from justice, of the executive authority of any state or territory to which such person has fled, and produces a copy of an indictment found or an affidavit made before a magistrate of any state or territory, charging the person demanded with having committed treason, felony or other crime, certified as authentic by the governor or chief magistrate of the state or territory from whence the person so charged has filed, it shall be the duty of the executive authority of the state or territory to which such person has fled to cause him to be arrested and secured, and to cause notice of the arrest to be given to the executive authority making such demand, or to the agent of such authority appointed to receive the fugitive, and to cause the fugitive to be delivered to such agent when he shall appear.' Section 5278, U.S. Rev. Stats. (2d Ed.) 1878 (U. S. Comp. St. § 10126).

The law of Florida makes it the duty of the Governor, 'when demand shall be made of him by the executive of any state or territory of any fugitive from justice, in the manner prescribed by the act of Congress approved 12th of February, 1793, shall cause said fugitive to be arrested and secured, either by making public proclamation or by issuing a warrant to that effect, as he may deem most expedient, under his hand and the seal of the state, directed to all and singular the sheriffs of this state, therein commanding them to arrest the fugitive therein named,' etc. Section 6182, Rev. Gen. Stats. 1920.

The first question raised on the writ of error is that it does not appear in the warrant of extradition that the affidavit presented to the Governor of Florida by the Governor of the State of Utah was made before a magistrate.

The act of Congress requires that the demanding authority must produce 'a copy of an indictment found or an affidavit made before a magistrate of any state or territory,' etc.

There is nothing to justify the contention that the affidavit must show on its face that it was made before a magistrate. The Governor, however, must have proof of that fact before him, and where the extradition is resisted, the fact that the affidavit was made before a magistrate may be shown by the sheriff in his return on habeas corpus proceedings.

The affidavit in this case was made before 'a city judge and ex officio justice of the peace of the state of Utah.'

A similar question was before this court in the case of Kurtz v. State, 22 Fla. 36, 1 Am. St. Rep. 173, where this court said:

'Counsel for Kurtz insists also that the act of Congress, section 5278, does not authorize the making of the original affidavit before an assistant police magistrate of a city. We are of the opinion that the designation of 'magistrate' in the act includes the officer before whom the affidavit was made.

'Rapalye and Lawrence's Law Dictionary defines 'magistrate' as meaning a judicial officer having a summary jurisdiction in matters of a criminal or quasi criminal nature, and is commonly used in the United States to designate two classes of judicial officers, justices of the peace and police justices. An American Consul at a foreign port has been held to be a 'magistrate' within the meaning of an act which provides that deeds should be acknowledged 'before a justice of the peace, or before a justice of the peace or magistrate in some other of the United States of America or in any other state or Kingdom in which the grantor may reside.' Scanlan et ux. v. Henry Wright, 13 Pick. 523.'

It cannot be questioned, therefore, that the officer before whom the charge was made was a magistrate, and that the Governor had sufficient proof of that fact before him when he issued his warrant of extradition.

The affidavit containing the charge against the petitioner, that was submitted to the Governor of Florida with the request from the Governor of Utah for his extradition, is attacked upon the grounds that it sets up facts which are wholly inconsistent with each other, in that it charges M. D. Joseph with...