Ullom v. Davis

• Decision Date: 30 October 1933
• Docket Number: 30774
• Citation: 169 Miss. 208,150 So. 519
• Court: Mississippi Supreme Court
• Parties: ULLOM v. DAVIS et al

150 So. 519

169 Miss. 208

ULLOM v. DAVIS et al

No. 30774

Supreme Court of Mississippi

October 30, 1933

Division B

Suggestion Of Error Overruled December 11, 1933.

APPEAL from circuit court of Lauderdale county, HON. J. D. FATHEREE Judge.

Habeas corpus proceeding by Ralph B. Ullom against Everette P. Davis and another. From a judgment sustaining a motion to quash the writ of habeas corpus and ordering petitioner surrendered to named respondent's custody, petitioner appeals. Affirmed.

Affirmed.

L. F. Easterling, of Jackson, and F. F. Mize, of Forest, for appellant.

In denying his application for a continuance and proceeding to try the cause in the absence of the appellant while he was home sick in bed and unable to be present in court, was not only an abuse of discretion, but the effect of the ruling of the court was to deprive appellant of the right guaranteed to him under the constitution and laws of the land.

Corbin v. State, 99 Miss. 486, 66 So. 43; Johnson v. State, 108 Miss. 709, 67 So. 177; Haggett v. State, 99 Miss. 844, 56 So. 172; Polk v. State, 64 So. 215.

Before a governor upon whom demand is made for the return of a fugitive can lawfully comply with it, it must appear to him that the person demanded is substantially charged with a crime against the laws of the state from whose justice he is alleged to have fled, and the plain inference is that the governor may refuse to surrender the fugitive unless he is so charged.

Barranger v. Baum, 68 A. S. R. 131; 11 R. C. L. 740, sec. 35; Roberts v. Reilly, 116 U.S. 80, 95, 24 F. 132; 60 A. S. R. 132; In re Tod, 12 S.D. 386, 76 A. S. R. 616; Ex parte Reggell, 114 U.S. 642, 5 S.Ct. 1148, 29 L.Ed. 250; Ex parte Edwards, 91 Miss. 621, 44 So. 829.

The copy of information presented to the governor of Mississippi did not substantially charge the appellant with a crime against the laws of the State of California.

Compton v. State of Alabama, 214 U.S. 1, 16 Ann. Cas. 1098; In re Fetter, 23 N. J. L. 320; Ex parte Morgan, 20 F. 298; Roberts v. Riley, 116 U.S. 80, 29 L.Ed. 549; Words and Phrases Judicially Defined, page 6741; Western Assur. Co. v. Altheimer, 25 S.W. 1067, 1069, 58 Ark. 565; Cheesman v. Hart, 42 F. 98, 99; Edgerton v. State, 70 S.W. 90; Line-berger v. Tidwell, 10 S.E. 758, 761, 104 N.C. 506; Commonwealth v. Wentworth, 118 Mass. 441.

It is our contention that the affidavit in question does not substantially charge a crime therein.

Peoples v. Harrington, 267 P. 942; Peoples v. Moore, 261 P. 740; People v. Locurto, 275 P. 462; 66 Cal. 10, 4 P. 772; 56 A. R. 73, note 469; Horton v. State, 39 L. R. A. (N. S.) 423; State v. Stewart, 9 N.D. 869; People v. Wasservogle, 77 Cal. 173, 19 P. 270; 25 A. S. R. 378, 381; Williams v. State, 14 L. R. A. (N. S.) 1197; People v. Milan, 106 Cal. 320, 39 P. 604; People v. Lopigne, 10 Cal.App. 669, 103, P. 164; Ann. Cas. 1915B 90, 25 A. S. R. 384; 11 R. C. L. 842, sec. 22; People v. Bryant, 281 P. 405; People v. Potter, 265 P. 365; People v. Rabe, 202 Cal. 409, 418, 261 P. 303; People v. Folcey, 247 P. 916; People v. Campbell, 265 P. 364; People v. Lopez, 90 Cal. 569, 572, 27 P. 427; State of Tennessee v. W. J. Massee, 46 L. R. A. (N. S.) 785.

The whole proceeding is to be tested by the rules and reasons laid down by the supreme court of the United States and the federal courts construing these federal statutes.

Ex parte Owen (Okla.), Ann. Cas. 1916A, 522; Article 6 of the Constitution of the United States; Ex parte Hart, 63 F. 249, 11 C. C. A. 165, 28 L. R. A. 801; State v. Klinkenberg, 136 P. 692, Ann. Cas. 1915B 468; People ex rel. De Martini v. McLaughlin, Police Commissioner, 153 N.E. 853; Ex parte "Brown, 259 P. 280; Ex parte Deal, 259 P. 282; Ex parte Hubbard, 160 S.E. 569.

Practically all of the cases dealing with extradition are collected in the notes under Title 18, section 662, U.S.C. A.

The executive warrant is insufficient to make prima facie case.

Section 662, U.S.C. A., Title 18; State v. Hackett, 33 S.W.2d 422.

It is obvious that the governor's warrant is fatally defective in that it fails to recite the jurisdictional facts required to be shown on the face of the warrant.

State v. Chase, 107 So. 541.

The appellant contends that the executive warrant, being the only authority for his detention, is insufficient under the constitution and laws of the United States; that in cases of habeas corpus where a prisoner is held under warrant, the warrant itself must show the necessary jurisdictional facts in order to make out a case of prima facie right to restrain the petitioner of his liberty.

Ex parte Devine, 74 Miss. 715, 22 So. 3; Ex parte Edwards, 44 So. 827, 91. Miss. 621; Grace v. Dogan, 117 So. 596; Appelyard v. Mass., 203 U.S. 222, 51 L.Ed. 161, 7 Ann. Cas. 1073; Ex parte Stanley, 25 Tex.App. 372, 8 A. S. R. 440; Roberts v. Riley, 116 U.S. 80, 29 L.Ed. 544; Strauss Case, 197 U.S. 324, 49 L.Ed. 774; In re Mohr, 73 Ala. 503, 49 A. R. 63; Thacker v. State, 101 So. 636; Chase v. State, 113 So. 103; Godwin v. State, 78 So. 313; Ex parte Forbes, 85 So. 590; Ex parte Rice, 89 So. 894; Young v. State, 46 So. 508; Ex parte State, 83 Ala. 503; Title 18, U.S.C. A., section 662; State v. Taylor, 22 S.W.2d 222.

W. D. Conn, Jr., Assistant Attorney-General, for appellees.

A habeas corpus proceeding, in extradition, is not such a one, as that a hearing thereon, in the absence of the petitioner, deprives him of any constitutional right.

Section 26, Mississippi Constitution of 1890; Lipscomb v. State, 76 Miss. 223, 25 So. 158.

Habeas corpus proceedings are not criminal prosecutions. They are civil rather than criminal in their nature.

State v. Gordon, 105 Miss. 454, 62 So. 431; Edmonson v. Ramsey, 122 Miss. 450, 84 So. 455.

The federal courts, as well as the United States Supreme Court, do not consider the presence of the defendant necessary when issuing or denying the writ upon its original presentation and when the writ is issued or denied.

Murdock v. Pollock, 229 F. 392, 142 C. C. A. 512; Ex parte Yarbrough, 110 U.S. 651, 28 L.Ed. 274; Ex parte Royall, 117 U.S. 241, 29 L.Ed. 868; In re Lewis, 114 F. 963; Erickson v. Hodges, 179 F. 177, 102 C. C. A. 443; In re Jordan, 49 F. 238; Ex parte Farley, 40 F. 66.

In habeas corpus proceedings where interstate extradition is concerned there are only a comparatively few things that may be inquired into by the court. Standing prominently among those things that cannot be inquired into is the guilt or innocence of the petitioner.

Grace v. Dogan, 151 Miss. 267, 117 So. 596; Ex parte Edwards, 91 Miss. 261, 44 So. 827; Roberts v. Reilly, 116 U.S. 80, 29 L.Ed. 544; Munsey v. Clough, 196 U.S. 364, 49 L.Ed. 515; Appelyard v. Mass., 203 U.S. 222, 51 L.Ed. 161; McNichols v. Pease, 207 U.S. 100, 52 L.Ed. 121; Drew v. Thaw, 235 U.S. 432, 59 L.Ed. 302; Beddinger v. Commissioner of Police, 245 U.S. 128, 62 L.Ed. 193; Glass v. Becker, 25 F.2d 929.

The copy of the information presented to the governor of Mississippi substantially charged appellant with a crime against the laws of California.

California Penal Code, sections 484, 489, 951 and 952; People v. Robinson, 290 P. 470; People v. Myers, 275 P. 219; People v. Plum, 275 P. 518; People v. Campbell, 265 P. 364.

The information in this case tracks the California statutes in charging the offense of grand theft. The statutes under which the information was drawn have been declared valid by the California court.

It is not for this court to say whether or not the statute of California is unconstitutional or invalid for any other reason. That is a matter for the California courts to decide.

Munsey v. Clough, 196 U.S. 364, 373; Compton v. Alabama, 214 U.S. 1, 8; Pearce v. Texas, 155 U.S. 311, 313; Pierce v. Creecy, 210 U.S. 387, 52 L.Ed. 113; Drew v. Thaw, 235 U.S. 432, 59 L.Ed. 302; In re Strauss, 197 U.S. 324, 49 L.Ed. 774.

The executive warrant was sufficient to make out a prima facie case, entitling the respondents to the custody of petitioner.

Grace v. Dogan, 151 Miss. 267, 117 So. 596; Appleyard v. Massachusetts, 203 U.S. 222, 51 L.Ed. 161; Ex parte Edwards, 91 Miss. 621, 44 So. 827; Munsey v. Clough, 196 U.S. 364, 49 L.Ed. 515; Roberts v. Reilly, 116 U.S. 80, 95; Hyatt v. Cockran, 118 U.S. 691.

Argued orally by L. F. Easterling, for appellant, and by W. D. Conn, Jr., for the state.

OPINION

Anderson, J.

Appellant appeals from a judgment of the circuit court of Lauderdale county sustaining a motion to quash his writ of habeas corpus and ordering him surrendered to the custody of E. P. Davis for delivery to the state of California on extradition warrant of the governor of this state. Appellant filed his petition for a writ of habeas corpus in Lauderdale county alleging that he was unlawfully restrained of his liberty by E. P. Davis, agent of the state of California, and B. M. Stephens, sheriff of Lauderdale county.

The respondents, Davis and Stephens, in their answers, set up that appellant was in custody and restrained of his liberty by virtue of a warrant from the governor of this state, and made the warrant a part of their answers. The warrant of the governor was in the usual form. It was addressed to the sheriff of Lauderdale county, and in its preamble recited that the governor of California had made known to the governor of this state that appellant stood charged with having committed the crime of grand theft (two counts), and that it appeared that appellant had fled from justice and was found in the state of Mississippi where he had taken refuge, and the governor of California demanded of the governor of this state the arrest and delivery of appellant to E. P. Davis, who had been appointed by the governor of California as agent to receive appellant and convey him "to the...