State v. Shelton

• Citation: 8 So.2d 216,30 Ala.App. 484
• Decision Date: 14 April 1942
• Docket Number: 8 Div. 267.
• Parties: STATE v. SHELTON.
• Court: Alabama Court of Appeals

8 So.2d 216

30 Ala.App. 484

STATE v. SHELTON.

8 Div. 267.

Alabama Court of Appeals

April 14, 1942

Rehearing Denied May 12, 1942.

Thos. S. Lawson, Atty. Gen., Geo. C. Johnson Co. Sol., of Athens, Paul Bumpus, of Columbia Tenn., and Chas. T. Houston, of Nashville, Tenn., for appellant.

J H. McCoy and Thos. S. Woodroof, both of Athens, for appellee.

SIMPSON Judge.

Petitioner was in custody of the Sheriff of Limestone County under arrest by a warrant of extradition from the Governor of Alabama, and petitioned for writ of habeas corpus.

The Judge of Probate of said county entertained the petition and upon consideration of the cause, discharged the prisoner upon the theory that the State had failed to make out a prima facie case.

The State has appealed.

The warrant of extradition issued by the Governor of Alabama (omitting formal parts) is:

"Whereas, His Excellency, Prentice Cooper, Governor of the State of Tennessee, by requisition dated the 26th day of November, 1941, has demanded of me, as Governor of the State of Alabama, the surrender of Floyd Edward Shelton, who, it appears, is charged by Indictment, In the county of Giles in said State, with the crime of Arson (a duly certified copy of which Indictment accompanies said requisition) and it appearing that said Floyd Edward Shelton has fled from justice in said State and taken refuge in the State of Alabama.

"Now, Therefore, I, Frank M. Dixon, Governor of the State of Alabama in obedience to the Constitution and Laws of the United States and the Laws of the State of Alabama, do command you to arrest the said Floyd Edward Shelton If He be found within the limits of this State, and to deliver Him into the custody of Gordon Topp the duly authorized Agent of the State of Tennessee.

"And of the execution of this warrant you will make due return to me."

One of the grounds upon which the trial judge based his order discharging the prisoner was that the Governor's warrant failed to show that the accused "was present in the State of Tennessee when the alleged crime was alleged to have been committed."

The Code 1940, Title 15, § 52, does provide that the papers must show, among other things, "that the accused was present in the demanding state at the time of the commission of the alleged crime." But the authorities are definite-and the rule has been recently reaffirmed by both of our appellate courts-that the prerequisites, establishing a prima facie case for the legal detention of the prisoner, have been complied with when the return to the writ of habeas corpus shows: "(1) 'A demand or requisition for the prisoner made by the executive of another state, from which he is alleged to have fled; (2) a copy of the indictment found or affidavit made before a magistrate, charging the alleged fugitive with the commission of the crime, certified as authentic by the executive of the state making the demand; (3) the warrant of the governor authorizing the arrest."' Mitchell v. State, Ala. App., 6 So.2d 457, 460, and cases cited; State v. Parrish, Ala.Sup., 5 So.2d 828, 835, and cases cited.

The return of the sheriff in the case at bar satisfied these requirements, so the petitioner was, prima facie, under legal restraint.

This, also, is substantially the holding of the Federal courts where the principle is stressed that the primary inquiry is whether or not the Federal Constitution and the statutes promulgated thereunder have been given effect in accordance with the construction placed upon them by the Supreme Court of the United States. McNichols v. Pease, 207 U.S. 100, 28 S.Ct. 58, 52 L.Ed. 121; South Carolina v. Bailey, 289 U.S. 412, 53 S.Ct. 667, 77 L.Ed. 1292.

It follows that the statutes of the several states and the decisions of the state courts upon this subject must be in harmony with federal law governing the matter. Parrish case, supra; Ex parte Roberts, 186 Wash. 13, 56 P.2d 703.

Authorities dealing with this subject are elaborately collated in the notes of 18 U. S.C.A. under Sec. 662.

It is also a settled rule that, in proceedings as this, when the requisition warrant of the Governor of the asylum state contains the requisite jurisdictional recitals, a prima facie case is established for the legal detention of the prisoner. State v. Parrish, supra, 5 So.2d at page 834, and cases cited.

Here, the warrant of extradition of the Governor of Alabama, as to its jurisdictional recitals, is identically the same as the warrants approved in the Parrish case and in Pool v. State, 16 Ala.App. 410, 78 So. 407. Upon authority of these cases and others of like import, therefore, it is held that the warrant of extradition in the present case was sufficient. And when exhibited with the sheriff's return showed, prima facie, that the petitioner was legally restrained.

Upon adverting to the record in the Parrish case, we find that the objection was made there, as here, that the warrant of the Governor failed to show that the accused was present in the demanding State at the time of the...