State v. Grosch

• Citation: 152 S.W.2d 239
• Parties: STATE ex rel. BROWN v. GROSCH.
• Decision Date: 14 June 1941
• Court: Tennessee Supreme Court

152 S.W.2d 239

STATE ex rel. BROWN v. GROSCH.

Supreme Court of Tennessee.

June 14, 1941.

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Error to Criminal Court, Davidson County; Charles Gilbert, Judge.

Habeas corpus proceeding by State of Tennessee, on relation of W. E. Brown, against John J. Grosch to test validity of action of the Governor of Tennessee authorizing the return of relator to the State of Louisiana for prosecution for murder after relator had been surrendered to the State of Tennessee by the State of Michigan. From a judgment dismissing the petition, the relator brings error.

Judgment affirmed.

H. B. Weimer and Andrew D. Tanner, both of Nashville, for plaintiff in error.

Nat Tipton, Asst. Atty. Gen., for defendant in error.

PREWITT, Special Justice.

This is an appeal from a judgment by Honorable Charles Gilbert, Judge of the Criminal Court of Davidson County, dismissing a petition filed to prevent extradition of the relator W. E. Brown to the State of Louisiana.

Some months ago relator Brown was arrested in the State of Michigan, charged with a crime against the laws of Tennessee, and was duly returned to this state. On February 3, 1941, he was indicted by the grand jury of Davidson County for robbery.

On or about February 11, 1941, the State of Louisiana, through its governor, made demand upon the governor of Tennessee to surrender relator to Louisiana to answer an indictment for murder. The governor of Tennessee honored such demand and duly issued his warrant authorizing the return of relator to Louisiana, and when this warrant was in the process of execution relator filed his petition for habeas corpus to test the validity of the action of the governor.

Upon the hearing it appeared that the crime for which relator stood charged in Louisiana occurred about 9 p. m. on January 24, 1941, and the relator testified that he left New Orleans on that same day at 12 o'clock noon. The trial court dismissed the petition and relator duly appealed to this court.

Three questions are presented for consideration: (1) That relator was not in Louisiana at the time of the alleged commission of the offense; (2) That the governor of this state issued his warrant without a hearing and without any evidence of the commission of the crime in Louisiana on the part of Brown except the requisition warrant; (3) That since Brown was under an indictment in this state, the governor had no power to award his custody to the State of Louisiana.

As to the first question, relator testified he was not in Louisiana at 9 p. m. on the date the killing took place, but left the state at 12 o'clock noon before it was committed. This court said in State ex rel. Van Scoyoc v. State, 171 Tenn. 357, 360, 103 S.W.2d 26, 27:

"The issuance of the warrant of extradition by the chief executive of this state creates a prima facie case that the petitioner was lawfully charged with a crime in the demanding state and that he was a fugitive from justice thereof. Illinois ex rel. McNichols v. Pease, 207 U.S. 100, 28 S.Ct. 58, 52 L.Ed. 121."

We have further held that in order to warrant his discharge from custody, the proof must clearly and satisfactorily show that the prisoner is not a fugitive from justice. State ex rel. v. Foster, 160 Tenn. 285, 23 S.W.2d 660, 24 S.W.2d 897.

It is not necessary that the evidence show absolutely that the party charged with the crime be present in the demanding state at the exact moment at which the crime is shown to have been committed. It is sufficient that the evidence show that such party was in the demanding state on or about the time alleged. Strassheim v. Daily, 221 U.S. 280, 31 S.Ct. 558, 55 L.Ed. 735; Hogan v. O'Neill, 255 U.S. 52, 41 S.Ct. 222, 65 L.Ed. 497; Ex parte Germain, 258 Mass. 289, 155 N.E. 12, 51 A.L.R. 789.

In Ex parte Germain, supra, proof that the party charged with the crime was in the demanding state at a date four days from that alleged as that of the crime was held sufficient to warrant his extradition as a fugitive from justice.

In the present case, the issuance by the governor of this state of the warrant made a prima facie case of the presence of the relator in the State of Louisiana at the time alleged in the indictment. Nothing appears in the record to overthrow this prima facie case except the unsupported testimony of the relator to the effect that he left the City of New Orleans, where the crime was alleged to have been committed, approximately nine hours prior to the time fixed as that of the commission of the crime.

With this presumption existent, the relator has not shown by clear and satisfactory proof that he was not a fugitive from justice.

It is well settled that in order to defeat extradition proceedings upon the ground that the party charged is not a fugitive from justice, his absence at or about the time of the crime must be shown beyond a reasonable doubt. South Carolina v. Bailey, 289 U.S. 412, 53 S.Ct. 667, 77 L.Ed. 1292.

The next contention is that relator was not accorded a hearing before the governor of this state before the issuance of the warrant, and that the chief executive had before him no evidence of the commission of a crime in the demanding state by the relator other than that contained in the request for requisition received from the governor of Louisiana.

It is well settled under the authorities that the failure to accord a hearing does not affect the validity of the warrant, and that the person demanded has no right to a hearing upon the question as to whether or not he be a fugitive from justice.

In Roberts v. Reilly, 116 U.S. 80, 6 S.Ct. 291, 299, 29 L.Ed. 544, it is said:

"It must appear, therefore, to the governor of the state to whom such a demand is presented, before he can lawfully comply with it — first, that the person demanded is substantially charged with a crime against the laws of the state from whose justice he is alleged to have fled, by an indictment or an affidavit, certified as authentic by the governor of the state making the demand; and, second, that the person demanded is a fugitive from justice of the state the executive authority of which makes the demand. The first of these prerequisites is a question of law, and is always open, upon the face of the papers, to judicial inquiry, on an application for a discharge under a writ of habeas corpus. The second is a question of fact, which the governor of the state upon whom the demand is made must decide, upon such evidence as he may deem satisfactory. How far his decision may be reviewed judicially in proceedings in habeas corpus, or whether it is not conclusive, are questions not settled by harmonious judicial decisions, nor by any authoritative judgment of this court. It is conceded that the determination of the fact by the executive of the state in issuing his warrant of arrest, upon a demand made on that ground, whether the writ contains a recital of an express finding to that effect or not, must be regarded as sufficient to justify the removal until the presumption in its favor is overthrown by contrary proof."

In Munsey v. Clough, 196 U.S. 364, 25 S.Ct. 282, 283, 49 L.Ed. 515, it was said:

"The proceedings in matters of this kind before the governor are summary in their nature. The questions before the governor, under the section of the Revised Statutes [18 U.S.C.A. § 662] are whether the person demanded has been substantially charged with a crime, and whether he is a fugitive from justice. The first is a question of law and the latter is a question of fact, which the governor, upon whom the demand is made, must decide upon such evidence as is satisfactory to him. Strict common-law evidence is not necessary. The statute does not provide for the particular kind of evidence to be produced before him, nor how it shall be authenticated, but it must at least be evidence which is satisfactory to the mind of the governor. * * * The person demanded has no constitutional right to be heard before the governor on either question, and the statute provides for none. To hold otherwise would, in many cases, render the constitutional provision, as well as the statute passed to carry it out, wholly useless.

"The governor, therefore, committed no error in refusing a hearing. The issuing of the warrant by him, with or without a recital therein that the person demanded is a fugitive from justice, must be regarded as sufficient to justify the removal, until the presumption in favor of the legality and regularity of the warrant is overthrown by contrary proof in a legal proceeding to review the action of the governor. Roberts v. Reilly, supra."

So then we see that when the requisite papers arrive from the demanding state to the asylum state, the question first presented to the governor of the asylum state is whether the papers are regular and show a prima facie case against the prisoner. This is a legal question. The next question is whether the person sought is a fugitive from justice. This is a fact question, and whether these papers present a case justifying the issuance of the rendition warrant, is a matter in which the governor of the asylum state must use his personal discretion, which cannot be delegated. He may have a hearing or not, as he sees proper. If the governor of the asylum state issues the warrant for the person sought, the latter may test the legality of same in a habeas corpus proceedings, and also in such proceedings may raise the question of fact, but before his release is justified, as pointed out above, he must show beyond a reasonable doubt that he is not guilty. See State v. Hackett, 161 Tenn. 602, 33 S.W.2d 422; State v. Selman, 157 Tenn. 641, 12 S.W.2d 368; State ex rel. Van Scoyoc v. State, 171 Tenn. 357, 103 S.W.2d 26.

The third and last question is the most serious of the three raised in this record wherein it is urged on behalf of the relator that since he stands charged with the offense of robbery committed in this state the governor of this state had no...