Tyner v. State, 6 Div. 387

• Decision Date: 29 March 1977
• Docket Number: 6 Div. 387
• Parties: Eugene TYNER v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 493

346 So.2d 493

Eugene TYNER v. STATE.

6 Div. 387.

Court of Criminal Appeals of Alabama.

March 29, 1977.

Rehearing Denied May 3, 1977.

Arthur Parker of Parker & Garrett, Birmingham, for appellant.

William J. Baxley, Atty. Gen., and Barry V. Hutner, Asst. Atty. Gen., for the State.

HARRIS, Judge.

This is an appeal from the judgment of the Circuit Court of Jefferson County denying appellant's petition for a writ of habeas corpus. He was in the custody of the Sheriff of Jefferson County under a rendition warrant issued by Honorable George C. Wallace, Governor of Alabama, at the request of Honorable Dan Walker, Governor of Illinois.

The rendition warrant recites that appellant is charged by Transcript in the County of Cook in said state, with the crime of "convicted of murder paroled and absconded from parole supervision." The rendition warrant fails to comply with the requirements of Title 15, Section 52, Code of Alabama 1940. It is necessary for the issuance of a warrant in such cases that the accused is "lawfully charged by indictment or by information filed by a prosecuting officer and supported by affidavit as to the facts, or by affidavit made before a magistrate in that state, with having committed a crime under the laws of that state, or that he has been convicted of crime in that state and has escaped from confinement or broken his parole." Beasley v. State, 43 Ala.App. 247, 187 So.2d 806; Watson v. State, 30 Ala.App. 184, 2 So.2d 470; Smith v. State, 45 Ala.App. 125, 226 So.2d 668; Lofton v. State, 46 Ala.App. 229, 239 So.2d 901.

Title 15, Section 54, Code of Alabama 1940, requires that "the warrant must substantially recite the facts necessary to the validity of its issue."

The return of the Sheriff recites:

"Comes now Melvin Bailey, as Sheriff of Jefferson County, Alabama, and in response to the writ issued herein, produces in court the body of the petitioner, Eugene Tyner, together with the cause of his detention, which is, to-wit:

"A warrant issued by the Governor of the State of Alabama dated August 31, 1976, directing the arrest of the said Eugene Tyner and his delivery to a duly authorized agent of the State of Illinois, on a charge of convicted murder paroled and absconded from parole supervision, a copy of which Governor's warrant is attached hereto and made a part hereof.

"Premises considered, Respondent Melvin Bailey, as Sheriff of Jefferson County, Alabama, moves the Court to dismiss the petition and writ issued herein and return the said Eugene Tyner to his custody as Sheriff of Jefferson County, Alabama, to be delivered to the agent of the State of Illinois.

"This the 29th day of October 1976."

Title 15, Section 50, Code of Alabama 1940, provides as follows:

"Form of demand. No demand for the extradition of a person charged with crime in another state shall be recognized by the governor unless in writing and accompanied by a copy of an indictment found or by an information supported by affidavit in the state having jurisdiction of the crime, or by a copy of an affidavit made before a magistrate there, together with a copy of any warrant which was issued thereon. The indictment, information, or affidavit made before the magistrate must substantially charge the person demanded with having committed a crime under the law of that state; and the copy must be authenticated by the executive authority making the demand, which shall be prima facie evidence of its truth." (Emphasis supplied.)

When the rendition warrant is defective, as here, and there are allied papers in evidence, we look to them to determine their legal sufficiency to justify the issuance of the rendition warrant. Aldio v. State, 44 Ala.App. 303, 208 So.2d 212; Lofton v. State, supra; Harris v. State, 257 Ala. 3, 60 So.2d 266.

In 1975 there was an abortive attempt to extradite appellant. At a habeas corpus hearing it was discovered that the parole violation warrant was not signed. Thereupon the hearing was halted on motion of the District Attorney so that he could return the papers to the Governor of Illinois to begin new proceedings to extradite appellant.

The first requisition from the Governor of Illinois was dated August 7, 1975, and the first rendition warrant issued by the Governor of Alabama was dated August 21, 1975. In the first requisition the Governor of Illinois designated one Lamont Knazze as the agent to receive and return appellant to the State of Illinois. When the requisition was returned to the Governor of Alabama the Governor of Illinois changed the name of the agent from Lamont Knazze to Fred Avendorph, but the date of the document remained unchanged. In other words, the Governor of Illinois merely substituted the name of Fred Avendorph for Lamont Knazze as the agent of the State of Illinois to receive and return appellant to that state. When the requisition was returned to Alabama Governor Wallace again issued the rendition warrant but this warrant was dated August 31, 1976. The same allied papers were attached to this warrant as were attached to the first requisition except the parole violation warrant was properly signed by the Director of the Department of Corrections of the State of Illinois, and the Supervisor of the Apprehension Unit, under the official seal of that Department.

The other allied papers attached to the requisition include the following:

1. A petition from the Warden of the Illinois State Penitentiary to the Governor of Illinois reciting that appellant was convicted of murder January 27, 1965 and was paroled on April 23, 1973 and violated his parole by fleeing the State of Illinois and finding refuge in Jefferson County, Alabama.

2. Affidavit of the Warden in Aid of Extradition reciting that appellant had been convicted of murder and sentenced for a term of not less than 20 years nor more than 35 years, in the Illinois State...