United States v. Walsh, 10038.

• Decision Date: 08 May 1950
• Docket Number: No. 10038.,10038.
• Citation: 182 F.2d 264
• Parties: UNITED STATES ex rel. MILLER v. WALSH.
• Court: U.S. Court of Appeals — Seventh Circuit

182 F.2d 264 (1950)

UNITED STATES ex rel. MILLER v. WALSH.

No. 10038.

United States Court of Appeals, Seventh Circuit.

May 8, 1950.

Joseph E. Clayton, Jr., Chicago, Ill., for appellant.

Berton Sevensma, Assistant Prosecuting Attorney, Grand Rapids, Mich., John S. Boyle, State's Attorney, James V. Cunningham, Assistant State's Attorney, Chicago, Ill., by John T. Gallagher, Assistant State's Attorney, Chicago, Ill., for appellee.

Before MAJOR, Chief Judge, and KERNER and DUFFY, Circuit Judges.

MAJOR, Chief Judge.

Raymond Miller (petitioner) filed his petition in the court below for a writ of habeas corpus to obtain his discharge from the custody of the Sheriff of Cook County, Illinois, by whom he was being held for extradition to the State of Michigan, to answer the charge of assault with intent to rob — armed, alleged to have been committed within that State. After a hearing the court rendered a memorandum opinion and, on September 13, 1949, entered the order appealed from, discharging the writ and remanding petitioner to the custody of the Cook County Sheriff, to be delivered to the agent of the State of Michigan in accordance with the warrant of the Governor of the State of Illinois.

The petitioner alleged that he was illegally taken in custody by the Cook County Sheriff upon a Governor's warrant issued by the Governor of the State of Illinois upon the request of the Governor of the State of Michigan; that said warrant was based upon certain documents presented or caused to have been presented by the representatives of the State of Michigan to the Governor of the State of Illinois, charging the petitioner with the crime of "assault with intent to rob — armed," on March 9, 1947, in the City of Grand Rapids in the State of Michigan, said offense alleged to have been in violation of the laws of that State.

Three issues were considered by the court below and are stated by the petitioner as contested issues here, (1) whether petitioner was a fugitive from justice in the State of Michigan, (2) that the authenticated complaint filed with the Governor of the State of Illinois was neither a valid indictment nor affidavit made before a magistrate as required by the United States statute, and (3) that the warrant of extradition was issued on information based only on the information and belief of the City Attorney of Grand Rapids, Michigan. No attempt has been made by the petitioner in this court to sustain these last two named issues, either by brief or otherwise, and we assume that they have been abandoned. The only issue for decision, therefore, is whether petitioner was a fugitive from justice within the meaning of clause 2, Sec. 2 of Article 4 of the United States Constitution, and Sec. 662, Title 18 U.S.C.A. 1948 Revised Criminal Code, 18 U.S.C.A. § 3182, enacted pursuant to the constitutional provision.

The facts, while somewhat lengthy, are not in dispute, and for the purpose of a decision of the question before us may be briefly stated. As noted, the crime charged against petitioner was alleged to have been committed on March 9, 1947. On that date, petitioner, a resident of the State of Illinois, admittedly was not in the State of Michigan, and it is also admitted that the date alleged was not an erroneous date. At the hearing below, there was offered in evidence the papers and documents relative to the extradition proceeding, including authenticated copies of the complaint and warrant and the affidavit of one William Martin, who allegedly was a participant in the commission of the crime charged against petitioner.

The affidavit of Martin, dated July 22, 1947, states that he lived in Chicago and had known petitioner for three years, that on March 7, 1947, Martin received a telephone call in Chicago from one Wellington Hurst, who was then in Grand Rapids, Michigan, in which Martin was advised that there was $38,000 in Grand Rapids which Hurst and others were trying to get, and Martin was requested to get in touch with petitioner and arrange for him and Martin to drive to Grand Rapids, Michigan, on the same day to meet Hurst and others at a railway station in a colored neighborhood in Grand Rapids. In pursuance of the telephone conversation with Hurst, Martin got in touch with petitioner and advised him of the conversation with Hurst. Thereupon, Martin and petitioner, on March 7, 1947, drove in petitioner's car from Chicago to Grand Rapids, to confer with Hurst relative to the $38,000. Upon reaching Grand Rapids, at about 4:30 p.m. on March 7, 1947, Martin and petitioner were unable to locate Hurst and his associates. Martin then purchased a tire for petitioner's car and both returned to Chicago on the same day in petitioner's car. On March 8, 1947, Martin got in touch with Hurst and his associates in Chicago and conferred with them about the location of the $38,000 in Grand Rapids. At this conference Hurst and his associates assured Martin that the money was in Grand Rapids in the home of relatives of one Arrington, who is named in the complaint as one of the persons assaulted with intent to rob; that Hurst and his associates advised Martin that they desired to use petitioner's car to return to Grand Rapids to obtain the $38,000, and requested Martin and petitioner to accompany them. (This last related conference between Hurst and Martin was out of the presence of petitioner.) The affidavit states that Martin conveyed this conversation to petitioner with the assurance that the $38,000 was actually located at the home of Arrington's relatives in Grand Rapids and requested petitioner to accompany Martin and the other conspirators to Grand Rapids to obtain the money.

The affidavit further recites that petitioner permitted Martin and the other conspirators to use his automobile to return to Grand Rapids, with the understanding and agreement between Martin and petitioner that they would share equally in Martin's cut of the $38,000. The affidavit describes the commission of the crime charged (alleged to have been committed on March 9, 1947) by stating that all of the conspirators except petitioner did drive to Grand Rapids in petitioner's car and that upon arriving there, the entire group, except Martin who remained in the car, entered the home of Arrington's relatives and that the men participating in the robbery were interrupted by the Grand Rapids police officers and that Martin, accompanied by one Stewart, returned to Chicago in petitioner's car and delivered it to petitioner. The affidavit also recites that Martin had conversation with petitioner subsequent to his return, in which petitioner suggested that Martin conceal himself until the investigation of the attempted robbery had subsided and gave Martin $200, with the request that he go to California. Martin instead went to Brooklyn, New York, where he was arrested by Brooklyn police and returned to Grand Rapids. Thereupon, Martin entered a plea of guilty to the crime with which petitioner is also charged.

For the purpose of this decision, it must be assumed that petitioner was in the State of Michigan on March 7, 1947 for the purpose and under the circumstances related by Martin. As stated, it is conceded that petitioner was not in Michigan on March 9, the date the alleged crime was committed, and the record shows that on that day he was in the State of his residence, that is,...