Syllabus
by the Court.
The
powers of the federal government and of the state, although
both exist and are exercised within the same territorial
limits, are yet separate and distinct sovereignties, acting
separately and independently of each other within their
respective spheres.
A
prisoner, with the consent of the Attorney General, may
while serving a sentence imposed by a District Court of the
United States, be lawfully taken on a writ of habeas corpus
ad prosequendum into a state court, and there put to trial
upon an accusation there pending against him, although there
is no express statutory authority for the transfer of a
federal prisoner to a state court for such purpose. The
Attorney General in such matters represents the United
States, and may, on its part, practice the comity which the
harmonious and effective operation of both systems of courts
requires, provided it does not prevent enforcement of the
sentence of the federal courts or endanger the prisoners.
Ponzi v. Fessenden et al., 258 U.S. 254, 42 S.Ct
309, 66 L.Ed. 607, 22 A. L. R. 879.
A
defendant, serving a sentence for crime, may be placed on
trial upon an information for another separate offense before
the expiration of his term of imprisonment.
Original
proceeding by the State, on the relation of George F. Short
Attorney General, for a writ of habeas corpus ad
prosequendum, to be directed to Ewers White, United States
Marshal, to secure the presence of Art Neff to be tried for
manslaughter. Writ allowed.
DOYLE
P.J.
This
case originates in this court by an application for a writ of
habeas corpus ad prosequendum, duly verified and filed in
this court by George F. Short, Attorney General, as follows:
"Your petitioner, the state of Oklahoma, by George F
Short, Attorney General of the state of Oklahoma, represents
and states to this honorable court that on the 27th day of
November, 1925, one Art Neff, whose more true name is
unknown, committed the crime of manslaughter in the county of
Oklahoma, state of Oklahoma; and that a preliminary
information was filed against the said Art Neff in the
justice court in and for Oklahoma City justice district,
Oklahoma county, state of Oklahoma, before W. P. Hawkins,
justice of the peace of said district, on the 28th day of
November, 1925, charging the said Art Neff with the crime of
manslaughter in said county and state, a copy of said
preliminary information being attached hereto, marked
'Exhibit A,' and made a part hereof.
That a warrant for the arrest of the said Art Neff was duly
issued on and pursuant to said preliminary information on the
28th day of November, 1925, addressed to the sheriff or any
constable of said county, for the arrest of said Art Neff for
said crime, a copy of which warrant is attached hereto,
marked 'Exhibit B,' and made a part hereof.
That said warrant for the arrest of said Art Neff was duly
and regularly placed in the hands of the duly elected,
qualified, and acting sheriff of the county of Oklahoma,
state of Oklahoma, for service upon the said Art Neff; but
that the said sheriff, since said date, has been and is now
unable to serve the said warrant upon the said Art Neff, or
to arrest and take into custody the said Art Neff because,
since the issuance of said warrant aforesaid, the said Art
Neff has at all times been and now is held in the custody and
under the control of the United States government and subject
to the supervision and control of the Attorney General of the
United States, the said Art Neff being so held by virtue of a
judgment and sentence imposed upon him on the 28th day of
November, 1925, by the United States District Court for the
Northern District of Oklahoma, confining him to the federal
penitentiary at Leavenworth, Kan., to serve a sentence of
eighteen months in said federal penitentiary.
Your petitioner further states and shows that the said Art
Neff should be returned to Oklahoma county, state of
Oklahoma, to answer said charge of manslaughter aforesaid at
this time and before the expiration of his federal sentence
imposed by the federal District Court aforesaid, because
delay in his trial on said charge of manslaughter would
greatly aid him to escape punishment therefor through the
disappearance of witnesses, and because of their memory
becoming less accurate, and the said Art Neff would thereby
be furnished an opportunity to avoid the full expiation of
his crimes.
Your petitioner further states that if and while the said Art
Neff is held under the custody of the officers of the state
of Oklahoma for trial on the charge aforesaid, he will be
kept safely from escape or from danger, that he
may be returned to the United States government to finish
serving his sentence so imposed by said sovereignty
aforesaid, after the completion of his said trial by the
state of Oklahoma on the charge of manslaughter aforesaid;
and that, if convicted upon said manslaughter charge, the
sentence imposed therefor may date from the expiration of the
sentence imposed by the federal court aforesaid.
Your petitioner further states and shows that the Attorney
General of the United States has consented that the said Art
Neff may be surrendered to the authorities of the state of
Oklahoma, that he may be tried on the charge of manslaughter
aforesaid.
Your petitioner further states and shows that the said Art
Neff is now in the custody of Ewers White, United States
marshal for Western District of Oklahoma, at Guthrie, Okl.,
within the territorial confines of the state of Oklahoma, and
within
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