State v. Saunders

• Decision Date: 08 July 1921
• Docket Number: No. 21995.,21995.
• Citation: 232 S.W. 973,288 Mo. 640
• Parties: STATE v. SAUNDERS.
• Court: Missouri Supreme Court

232 S.W. 973

288 Mo. 640

STATE v. SAUNDERS.

No. 21995.

Supreme Court of Missouri, in Banc.

July 8, 1921.

Appeal from Circuit Court, Livingston County; Arch B. Davis, Judge.

T. M. Saunders was convicted of larceny, and he appeals. Reversed and remanded.

L. A. Martin, of Chillicothe, for appellant.

Frank W. McAllister, Atty. Gen., and J. W. Broaddus, Asst. Atty. Gen., for the State.

WALKER, J.

The appellant was charged, by information in the circuit court of Livingston county, with larceny in the nighttime, in having stolen from the premises of their owners certain domestic fowls, in violation of section 3314, R. S. 1919. Upon a trial, he was convicted, and his punishment assessed at five years' imprisonment in the penitentiary. From this judgment he appeals.

The appellant resided in that part of Chillicothe known as Graysville; in the immediate neighborhood lived one Loney, an acquaintance and associate of the appellant On the night of August 7, 1917, appellant came to Loney's residence, and when the latter's wife retired, about 8:30 o'clock, the men were sitting on the porch talking. Loney testified that appellant suggested they go out and get some chickens. Loney had a horse and buggy, and at about 10 or 11 o'clock p. m. they started out into the country in this conveyance. They took five or six gunny sacks along, in which to put the chickens. When they reached a neighborhood about five miles from Chillicothe, they hitched the horse in a meadow, and took from the premises of farmers residing in the neighborhood about 30 chickens. Placing them in the buggy, they started homewards; they were overtaken by some farmers in an automobile. These farmers passed them slowly on the road, proceeded some distance ahead, and stopped to await their coming. There was but one man in the buggy when it was driven up to where the farmers were waiting. Loney was that man. He states that after the farmers passed him and the appellant he remarked to the latter that "There is something up; we are caught." To which the appellant replied with an oath, "I'm not caught," and, jumping out of the buggy, disappeared in the night. Loney was taken into custody by the farmers, who took him to Chillicothe, where he was placed under arrest, charged with having stolen the chickens, tried, and sentenced to the penitentiary. Nothing was heard of the appellant until in July, 1918, when it was learned that he was imprisoned in the Iowa penitentiary, under a conviction for chicken stealing in that state. When his whereabouts were discovered, application was made to the Governor of this state for a requisition for his return, which was granted, and, armed with this commission, an officer went to Des Moines and presented it to the Governor of Iowa, who made an order paroling the appellant, and turning him over to the officer from Missouri, conditioned that he would be returned to Iowa to serve out his sentence if not convicted in this state of the crime charged against him.

The burden of the appellant's defense is an alibi, and that he is being prosecuted in violation of his constitutional rights in having been tried and convicted while under sentence for a crime committed in Iowa.

According to his own testimony and that of his witnesses, at about 10 or 11 o'clock on the night of Loney's arrest, the appellant, who also owned a horse and buggy, went to his boarding place, and, with the assistance of a woman who resided there, they hitched the pony to the buggy, and he went to Braymer, a town about 20 miles away from Chillicothe; that from there he went to Iowa, and while in the latter state he was charged with and convicted of chicken stealing, and sent to the penitentiary. Appellant denies that he saw Loney on the night of the crime, and as well his complicity therein. As stated by Commissioner Raney, in his opinion in this case, in Divison No. 2, there was an utter lack of compliance with our rule 19, by counsel for appellant in his presentation of this case. Instead of a statement containing references to the pages of the transcript, with an assignment of error and a brief of points and authorities, there is filed an argumentative narration of the facts in the case, as detailed by the witnesses for the appellant. This is followed by a discussion of the instructions, and what is termed a summary of the case. Despite these irregularities, we will endeavor to glean from the record the errors assigned, to determine if there is any merit in the appellant's contentions.

I. The parole of the Governor of Iowa, which authorized the removal of the appellant from that state to this, and his trial here, are assigned as error, in that they violate the appellant's constitutional rights in subjecting him to cruel and unusual punishment. The mistaken conclusion as to the character of appellant's injury, resulting from the course pursued, is immaterial. We are still confronted with the question as to the authority for this procedure.

The Constitution of the United States (section 2, art. 4) provides that—

"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."

The procedure necessary to the effective enforcement of this constitutional provision is found in section 5278, Rev. St. U. S. (U. S. Comp. St. § 10126), as follows:

"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 fled, 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."

The obvious purpose of these provisions is to render more effective the laws for the punishment of crime. The constitutional provision not being self-executing on account of its generality, Congress has, in the statute cited, prescribed the course to be pursued in carrying it into effect. To supplement this power, the Legislatures of the states of Missouri and Iowa have, as they are authorized to do when their acts are not repugnant to the federal statute, enacted laws more definitely defining the manner in which this power is to be exercised. Section 3930, R. S. Mo. 1919; section 9146, Comp. Code Iowa, 1919. Obvious as is the purpose of the constitutional and statutory provisions, and ample as is the procedure prescribed for their enforcement, the vexing question remains as to their application where the offender is at the time held in custody and undergoing punishment for a violation of the laws of the state to which he has fled.

After a somewhat exhaustive review of the literature on this subject, we find that, while the question has not been directly ruled upon in but few cases, illuminating dicta are to be found in a number of others. This much has been definitely settled, that where a demand is properly made by the Governor of one state upon the Governor of another, for the surrender of a fugitive, the duty so to do is not absolute and unqualified, but depends upon the circumstances of each particular case. If the law of the state in which asylum has been sought has been violated by the fugitive, and he has been convicted there, and is undergoing sentence, the demands of the law thus violated may be first satisfied before obedience to the constitutional provision to surrender him arises. Taylor v. Taintor, 16 Wall. 366, 21 L. Ed. 287, 4 Am. Rep. 58; People v. Hagan, 34 Misc. Rep. 85, 69 N. Y. Supp. 475; In re Opinion of Justices, 201 Mass. 609, 89 N. E. 174, 24 L. R. A. (N. S.) 799; Roberts v. Reilley, 116 U. S. 80, 6 Sup. Ct. 291, 29 L. Ed. 544; In re Hess, 5 Kan. App. 763, 48 Pac. 596; Kelly v. Mangum, 145 Ga. 57, 88 S. E. 556; Hackney v. Welsh, 107 Ind. 253, 8 N. E. 141, 57 Am. Rep. 101; Ex parte Marrin (D. C.) 164 Fed. 631; Cozart v. Wolf, 185 Ind. 505, 112 N. E. 241; People v. Benham, 71 Misc. Rep. 345, 128 N. Y. Supp. 610; State v. Allen, 2 Humph. (Tenn.) 258.

Despite the rule announced in these cases as to the prior right of the asylum state to enforce its judgment before surrendering the fugitive, may it nevertheless waive this right and deliver him to the authorities of the other state?

In re Opinion of Justices, supra, which was an advisory opinion given by the justices of the Supreme Court of Massachusetts to the Governor of that state, it was held that, while the state in which a fugitive is found may waive its right to punish him for a violation of its own laws, and deliver him to the authorities of another state, this right cannot be exercised by the Governor alone; that he has no power to interfere with a judicial sentence except by pardon, and that a waiver of punishment does not constitute a pardon. A different conclusion is reached in People ex rel. Gallagher v. Hagan, supra, in which it is held that it is no defense to a warrant of execution that a prisoner who has been convicted of crime in a state cannot be extradited until he has served his sentence; that the Governor may waive the right of the state to punish him, and grant the requisition. In the discussion of this question, the court says:

"In the very nature of things it is desirable that this power should rest somewhere in the...