Taylor v. Smith

• Decision Date: 05 April 1938
• Docket Number: No. 26904.,26904.
• Citation: 13 N.E.2d 954,213 Ind. 640
• Parties: TAYLOR v. SMITH et al.
• Court: Indiana Supreme Court

213 Ind. 640

13 N.E.2d 954

TAYLOR

v.SMITH et al.

No. 26904.

Supreme Court of Indiana.

April 5, 1938.

Habeas corpus proceeding by Charles O. Smith against John Taylor and another to secure release of petitioner whose extradition was sought by a foreign state. Judgment for petitioner, and the named defendant appeals.

Reversed, with directions.Appeal from Superior Court, Allen County; Charles J. Ryan, judge.

C. Byron Hayes, Otto W. Koenig, Otto E. Grant, all of Fort Wayne, and Edw. H. Levine, of Brooklyn, N. Y., for appellant.

Jacob Weiss, of Indianapolis, and Guy Colerick and Chester L. Teeter, both of Fort Wayne, for appellees.

TREMAIN, Judge.

A requisition was issued by the Governor of the state of New York to the Governor of this state, demanding that the appellee, a fugitive from justice, be arrested and returned to that state to answer to an indictment charging a felony. The Governor of Indiana issued a warrant to the appellant, captain of detectives of the Fort Wayne Police Department, for the arrest of appellee. Immediately upon his arrest he filed a verified petition for a writ of habeas corpus in the superior court of Allen county, Ind., that being the county of appellee's residence. He alleged in his petition that he was not a fugitive from the state of New York, and, at the time of the alleged commission of the crime, was in the state of Indiana, and had never fled from the state of New York. The appellant's return to the writ recited that he held the appellee by virtue of a warrant issued by the Governor of Indiana upon the requisition of the Governor of New York.

A trial was had in which evidence was received upon the part of the appellant to establish the fact that the appellee was in the state of New York at the time of the commission of the felony charged, and was the Charles O. Smith named in the indictment; and upon behalf of the appellee establishing that, at said time, the appellee was in the city of Fort Wayne in the state of Indiana. Upon the question of the presence of the appellee in the state of New York, it is conceded that the evidence is conflicting. No question is presented as to the sufficiency of the requisition issued by the Governor of New York or as to the warrant issued by the Governor of Indiana. The trial court discharged the appellee. The appellant excepted and appealed to this court.

It is the position of the appellant that, under the present statute, and the issue the appellee was in the state of New York ithe appellee was in the state of New York at the time of the commission of the crime is not a proper subject of investigation at a trial on a writ of habeas corpus; that the only question to be inquired into is the identity of the appellee as the person named in the indictment returned in the state of New York.

In 1935 the General Assembly of the state of Indiana enacted chapter 49, Burns' Ind.St.1933, §§ 9-419 to 9-448, Pocket Supp., §§ 2049-1 to 2049-31, Baldwin's 1934 May Supp.1935, known as the Uniform Criminal Extradition Act. This act materially changed the procedural features in the habeas corpus law as heretofore existing in this state. Section 2 provides that, subject to the qualifications of this act, the provisions of the Constitution of the United States, and acts of Congress, it is the duty of the Governor of this state to arrest and deliver to the executive authority of any other state a person charged in that state with a felony who has fled from justice and is found in this state. Section 3 provides that the requisition shall be accompanied by a copy of the indictment, if one had been...