State v. Hall

• Decision Date: 08 December 1888
• Citation: 19 P. 918,40 Kan. 338
• Parties: THE STATE OF KANSAS v. J. S. HALL
• Court: Kansas Supreme Court

19 P. 918

40 Kan. 338

THE STATE OF KANSAS v. J. S. HALL

Supreme Court of Kansas

December 8, 1888

Error from Saline District Court.

AT the December term, 1887, of the district court of Saline county the grand jury found and returned an indictment, consisting of two counts, against J. S. Hall. In the first count he was charged, in connection with one Hannah E. Weller, with forging and counterfeiting a warranty deed, on or about September 1, 1886, at Saline county, under § 114 subdivision 1 of the crimes act. The second count charged Hall alone with the offense. On this indictment a warrant was issued; and Hall having removed to California, a requisition was obtained from the governor of this state on the governor of California, and by his authority extradited to Kansas. He was arrested at Pasadena, Los Angeles county, California, and was returned to this state on the 26th day of January, 1888. On his arrival at Salina he gave a bond with the required security for his appearance at the trial that was to be had at the March term, 1888. At the March term the grand jury found and returned another indictment against Hall alone consisting of two counts. The first count charges him with the same offense for which he was extradited, and the second count charges him with passing, uttering and publishing the warranty deed that he was charged with forging.

While the first indictment, and the one upon which he was extradited, was still pending and undisposed of, and while he was in attendance at the court to answer the same, he was arrested on the second indictment, and a nolle prosequi was then entered as to the first indictment. Hall then filed a motion to quash the second indictment, and each and every count thereof, for the reason that at the time of his arrest on the warrant issued on the second indictment, the first indictment was pending against him in the court, and was wholly undisposed of; that thereafter, and without the consent of Hall, the first indictment was nollied and dismissed, and Hall discharged; and that said second indictment does not charge the same offense charged in the first one, nor was Hall extradited to this state from the state of California to answer the charges set forth in the second indictment. On the hearing the court sustained said motion as to the second count of the last indictment, to which ruling the state excepted. Hall then waived arraignment, pleaded not guilty, went to trial on the first count, and was acquitted by the jury.

The state reserved the question as to the ruling of the trial court sustaining the motion to quash the second count of the last indictment, and now brings the case to this court for review.

Judgment affirmed.

Joseph Moore, county attorney, for The State; W. P. Quinby, of counsel.

J. G. Mohler, and Lovitt & Sturman, contra.

VALENTINE, J. All the Justices concurring.

OPINION

VALENTINE, J.:

The judgment of the court below must be affirmed. The question presented is this: Where a fugitive from justice from the state of Kansas to another state has lawfully been extradited from such other state back to Kansas for the purpose that he may be required to answer to a criminal charge contained in a certain indictment, can he at once be put upon trial to answer to another and different criminal charge, contained in another and different indictment, but a charge of an offense for which he could have been, but was not extradited? In other words, can a person be extradited for one offense and immediately tried for a wholly different offense? We would think not. It is a general maxim of law that judicial process shall not be abused. But to try a person for an offense other than the one for which he was extradited would be an abuse of judicial process. Within this broad and general maxim above referred to, is included the following more definite rule of law, to wit: Where the presence of a person has been changed from a place outside of the territorial jurisdiction of a court of justice to a place within such jurisdiction, and this change has been procured through the instrumentality of another person and upon a pretext of thereby accomplishing some particular purpose, such first-mentioned person cannot, after his presence has been thus obtained within the territorial jurisdiction of the court, and before he has had an opportunity to return, be prosecuted in such court by the person who has thus been instrumental in procuring his presence, for the purpose of accomplishing some wholly different purpose. This rule of law has often been applied by the courts in civil cases. ( Van Horn v. Great Western Mfg. Co., 37 Kan. 523, 526, and cases there cited; Spear on Extradition, 526, and cases there cited; Compton v. Wilder, 40 Ohio St. 130.) This rule of law is applied in cases of separate jurisdictions, whether the separate jurisdictions are cities, counties, districts, states, or foreign countries. It is often the case, however, that the jurisdiction of a court extends to every portion of the state; but a court cannot have jurisdiction beyond the boundaries of its own state. Nor can it send its process into other states or countries. It cannot compel a fugitive from justice or any other person beyond the boundaries of its own state to attend its sessions. A fugitive from justice can be obtained from another state or country only with the consent of the executive authorities of such other state or country; and for a state to procure a fugitive from justice from some other state or country to be tried for some particular offense, by the consent of such other state or country, and then to try him for another and a different offense before he has had an opportunity to return, would be such an unwarranted abuse of judicial process, such a fraud upon justice, such an act of perfidy, that no court in any country should for a moment tolerate the same.

The foregoing rule of law applies in criminal cases where the fugitive from justice has been extradited from a foreign country. (United States v. Rauscher, 119 U.S. 407; same case, 7 S.Ct. 234; United States v. Watts, 8 Sawy. 370; Ex parte Hibbs, 26 F. 421, 431; Ex parte Coy, 32 id. 911, and note; Commonwealth v. Hawes, 13 Bush 697; The State v. Vanderpool, 39 Ohio St. 273; same case, 48 Am. Rep. 431; Blandord v. The State, 10 Tex. Ct. App. 627.) In the cases above cited the fugitives from justice were extradited under treaties, but in these treaties there was no provision that the fugitive from justice should be tried only for the offense for which he was extradited; hence the foregoing decisions are perfectly applicable to this case. The foregoing rule of law also applies in criminal cases between states. (The State v. Simmons, 39 Kan. 262; In re Cannon, 47 Mich. 481.) And it applies as strongly between states as it does between foreign countries. In Lagrave's Case, 14 Abb. Pr. (N. S.) 344, 346, Judge Daniels uses the following language:

"In principle there can be no practical difference between the case of a fugitive brought from a neighboring state under the constitution and laws of the United States, and one brought from a foreign country under the provisions of its treaties. In each the right of freedom to return is precisely the same, and the implied guarantee of that right under the laws is no greater in one case than it is in the other."

The foregoing rule of law stated broadly, as it is, is upheld and sustained by the great preponderance of authority in this country. When applied to civil cases, it is sustained by nearly the entire, if not the universal, current of authority. When applied to criminal cases where the extradition is from a foreign country, it is sustained by almost all authority. When applied, however, to criminal cases where the extradition is from a sister state, a majority of the cases is against the rule, and as we think without any good reason. The state should not be allowed to obtain jurisdiction of a fugitive from justice for one purpose, and then to take advantage of that jurisdiction thus obtained and use it for another and a different purpose. A state has no more right to act...