State v. Foster

• Citation: 23 S.W.2d 660
• Parties: STATE ex rel. GUY v. FOSTER, Chief of Police.
• Decision Date: 01 February 1930
• Court: Tennessee Supreme Court

23 S.W.2d 660 STATE ex rel. GUY
v.
FOSTER, Chief of Police. Supreme Court of Tennessee. February 1, 1930.

Appeal from Circuit Court, Davidson County; A. B. Neil, Judge.

Habeas corpus by the State, on the relation of B. F. Guy, against Lon Foster, Chief of Police of the City of Nashville. Judgment of dismissal, and both parties appeal. Affirmed.

John W. Hilldrop, of Nashville, for plaintiff in error.

Chas. Gilbert, of Nashville, for defendant in error.

McKINNEY, J.

This is a habeas corpus proceeding, by which the relator, B. F. Guy, resists being extradited to Michigan to answer a charge of receiving stolen property on December 1, 1928, his contention being that he was in Nashville on that date, and hence could not have committed the crime. No question as to constructive presence and actual absence is presented in this case. The trial court, after hearing the evidence, dismissed the petition, and permitted both parties to appeal.

Is such a case appealable? We hold that it is.

The title of chapter 157, Acts of 1887, is as follows:

"An act giving to parties in habeas corpus cases the right of appeal to the Supreme Court."

The body of the act conforms to the title, with the following exception: "Provided, this act shall not apply to parties held in custody in criminal cases." Section 1.

Page 661

In construing this proviso this court, in Vanvabry v. Staton, 88 Tenn. 339, 12 S. W. 786, 787, said:

"* * * We think this proviso applies only to persons held in custody in a `criminal case;' that is, in a pending case.

"The words `criminal cases' apply to one held upon a criminal charge, against whom there is a pending case. In such cases an appeal would only operate to delay a trial and continue the imprisonment. One in custody upon a judgment of conviction is not one held in custody in a `criminal case,' within the meaning of the proviso."

This necessarily means a case pending to which this state is a party. The lawmaking body of Tennessee does not legislate with respect to crimes in other states, nor regulate the procedure by which such criminals are tried. The object of the provision in question was to expedite the trial of criminal cases in this state. This court has heretofore entertained such appeals without any question of jurisdiction being raised. Hebert v. Coleman, 3 Tenn. Civ. App. 316 (affirmed by this court); State ex rel. v. Selman, 157 Tenn. 641, 12 S. W.(2d) 368.

On the question of absence from the demanding state, the decided weight...