State v. Foster

• Decision Date: 01 February 1930
• Citation: 23 S.W.2d 660,160 Tenn. 285
• Parties: STATE ex rel. v. FOSTER, Chief of Police. GUY
• Court: Tennessee Supreme Court

23 S.W.2d 660

160 Tenn. 285

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.

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 of authority, and the best-reasoned cases, hold that in such a proceeding the relator may prove his absence at the time of the alleged crime. 29 Corpus Juris, 76; 12 R. C. L. 1247-1248; 51 A. L. R. 798-804.

In Hebert v. Coleman, supra, it was said:

"* * * But some courts have gone further than this, and the holdings of these courts as to the scope of a proceeding, such as that at bar, as set out in Church on Habeas Corpus (2d Ed.) § 486, is as follows:

'The prisoner, in a case of interstate rendition, may, when he invokes the aid of the judicial department of the government to determine the legality of his imprisonment, have the executive action reviewed, as it is not final. And the inquiry, on habeas corpus, is not limited to the sufficiency of the papers and the identity of the prisoner, as is sometimes held. The prisoner may, of course, show, on this writ, that the papers on which his extradition is founded are insufficient; and that he is not the identical person wanted; but he may also show that he is not "charged with crime" against the law of the demanding state; and may show that his arrest is illegal, by parol proof that he was not corporally present in the demanding state at the time the crime was alleged to have been committed-in other words, that he is not a fugitive from justice. He may also show that he has been enticed within the jurisdiction of the demanding state by device, strategem, or fraud for the purpose of being served with civil process.'

We think the better considered cases and the weight of authority are in accord with this view."

As to the character of evidence necessary to authorize a discharge the United States courts, and quite a few of the state courts, hold that the proof must "clearly and satisfactorily" show that the prisoner is not a fugitive from justice. We adopt this rule, and refer to 51 A. L. R. pp. 804-810, where the cases...