Thacker v. State

• Decision Date: 02 September 1924
• Docket Number: 6 Div. 488.
• Citation: 101 So. 636,20 Ala.App. 302
• Parties: THACKER v. STATE.
• Court: Alabama Court of Appeals

101 So. 636

20 Ala.App. 302

THACKER v. STATE.

6 Div. 488.

Court of Appeals of Alabama

September 2, 1924

Rehearing Denied Oct. 7, 1924.

Second Rehearing Denied Oct. 9, 1924.

Appeal from Circuit Court, Cullman County; Osceola Kyle, Judge.

Petition by J. W. Thacker, alias J. S. Moar, for writ of habeas corpus. From a judgment denying the writ, petitioner appeals. Affirmed.

Certiorari denied by the Supreme Court in Ex parte Thacker, 101 So. 638.

W. E James, of Cullman, and James J. Mayfield, of Montgomery, for appellant.

Harwell G. Davis, Atty. Gen., and Brown & Griffith, of Cullman, for the State.

SAMFORD J.

The state introduced on the trial the warrant issued by the Governor of Alabama, together with the return of the sheriff of Cullman county. Insistence was made that this evidence did not make out a prima facie case for the state. The return of the sheriff rests upon the sufficiency of the warrant of the Governor, which recites the jurisdictional facts which the law requires the Governor to find before issuing his warrant. To this end it was within the province of the Governor to require the production of satisfactory evidence of the existence of these facts. Being a matter of official duty the presumption will be indulged, in the absence of proof to the contrary, that this duty was performed, and therefore the recitals in the warrant as to these jurisdictional facts are prima facie evidence of such facts. In the case of Poole v. State, 16 Ala. App. 410, 78 So. 407, will be found a correct statement of the rule and the authorities to sustain the ruling. See, also, Singleton v. State, 144 Ala 104, 42 So. 23.

Upon a superficial reading of the opinion by Merritt, J., in Fitzgerald v. State, 18 Ala. App. 115, 90 So. 45, it would appear that the decisions of this court are not in entire harmony, but it will be observed that in the Fitzgerald Case, supra, the warrant of the Governor does not appear to have recited a demand or requisition by the Governor of Ohio or Mississippi on the Governor of this state for the delivery of the person named. Indeed, it is stated in the opinion, "There was shown to be no demand or requisition," etc. This was one of the essential jurisdictional facts. It will therefore be seen that the decision in the Fitzgerald Case, supra, is not in conflict with the present holding, where every necessary jurisdictional fact necessary is recited in the Governor's warrant, of which jurisdictional facts the recitals in the Governor's warrant are prima facie evidence. Poole's Case, supra. The expressions used in Ex parte Rice, 18 Ala. App. 186, 89 So. 894, are dictum.

The rule seems to be, as supported by the best authority, that a case like the one at bar is made out prima facie, "when (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,...