Videan v. State

• Decision Date: 28 April 1948
• Docket Number: 7381
• Citation: 68 Idaho 269,194 P.2d 615
• Parties: VIDEAN v. STATE
• Court: Idaho Supreme Court

194 P.2d 615

68 Idaho 269

VIDEAN v. STATE

No. 7381

Supreme Court of Idaho

April 28, 1948

Appeal from District Court, Fifth Judicial District; Bannock County Isaac McDougall, Judge.

Reversed and remanded with instructions to grant the writ and discharge petitioner.

P. A McDermott and O. R. Baum, both of Pocatello, for appellant.

Robert Smylie, Atty. Gen., J. R. Smead, Asst. Atty. Gen., and Henry F. McQuade, Pros. Atty., of Pocatello, for respondent.

Miller Justice. Givens, C. J., and Holden and Hyatt, JJ., concur. Budge, J., dissents.

OPINION

Miller, Justice.

January 12, 1945, Majorie R. Videan, now Majorie Videan McGahan, obtained a decree of divorce in the circuit court of the county of Kent, state of Michigan from Ernest R. Videan, petitioner and appellant. The said decree awarded the custody of the minor children of the marriage, to-wit, Lester, born August 26, 1934 and Richard, born October 1, 1936, to plaintiff, Majorie R. Videan. The decree of divorce contained a provision as follows: "And it is further ordered, adjudged and decreed that beginning twelve (12) weeks from January 6, 1945, that the Defendant, Ernest R. Videan, shall pay to the Clerk of the Court the sum of Eighteen ($ 18.00) Dollars per week, until the youngest child of the parties, namely: Richard, born October 1, 1936, shall arrive at the age of seventeen (17) years." Sometime in February, 1945, the petitioner and appellant left the state of Michigan and came to Pocatello, Idaho. He returned to Michigan in December, 1945, and remained there until about December 27, 1945, when he returned to Pocatello. Mrs. Videan remarried December 31, 1945. When appellant first came to Pocatello, Idaho, he worked at the "Navy Gun Plant" as a machinist and part-time instructor. On his return from Michigan in December, 1945, the position he formerly had as a machinist and part-time instructor was no longer available so he went to work as a common laborer at the gun relining plant, later expecting to resume his former employment as soon as there was an opening. He also engaged in employment other than that at the gun relining plant. He made a trip to Salt Lake City where he had a job as foreman with the National-Baldwin Co., but was unable to find a place to live so he came back to Pocatello, Idaho.

About February 15, 1947, on telegraphic warrant from the sheriff of Kent County, Michigan, appellant was arrested in Pocatello, Idaho, and placed in the Bannock County jail. March 5, 1947, Menso R. Bolt, Prosecuting Attorney of Kent County, Michigan, applied to the Hon. Kim Sigler, Governor of Michigan, for requisition upon the Governor of the state of Idaho, for the arrest and rendition of Ernest R. Videan to James Toohey, as agent for said county and state, in the extradition of said Videan. March 6, 1947, the Governor of the state of Michigan signed said requisition to and upon the Governor of the state of Idaho, in which it was stated that Ernest R. Videan stood charged with "committing acts in the state of Idaho, intentionally resulting in crime in the state of Michigan, to-wit: 'non-support'," and requesting that the said Ernest R. Videan be apprehended and delivered to James Toohey, as agent, authorized to receive and convey said Videan to the state of Michigan, there to be dealt with according to law. The application for requisition by the prosecuting attorney of Kent County, to the Governor of Michigan does not show that the said Ernest R. Videan fled from the state of Michigan, because of any crime committed within said state, and the executive authority of the state of Michigan in his authorization designating James Toohey, as agent, to take and receive from the proper authorities of the state of Idaho, the said Ernest R. Videan and convey him to the state of Michigan, does not show that the said Videan is a fugitive from justice from the state of Michigan, nor does the requisition of the Governor of Michigan to the Governor of the state of Idaho assert that the said Videan is a fugitive from the state of Michigan or that he had fled therefrom and had taken refuge in the state of Idaho, but it does affirmatively appear from said documents and papers that the said Videan is not a fugitive from justice from the state of Michigan.

The charges accompanying the application for requisition from the demanding state, are contained in the complaint of Marjorie Videan McGahan, and are sworn to before a Justice of the Peace. In the first count is shown that the appellant, Ernest R. Videan, had failed, neglected and refused to provide the necessary and proper food, care, shelter and clothing for his minor children, to-wit: "non-support", as required by the statutory law of the state of Michigan. The second count of said complaint purports to show that the said Ernest R. Videan had committed acts in the city of Pocatello, state of Idaho, intentionally resulting in a crime in the state of Michigan, in that said Videan had failed, neglected and refused to provide the necessary and proper food, care, shelter and clothing for his minor children under the age of seventeen years, and in violation of and contrary to the provisions of section 161 of Act No. 328 of the Public Acts of the state of Michigan for the year 1931, being section 28.358 of the Michigan Statutes Annotated.

The proceedings for extradition were used in the hearing of petition for a writ of habeas corpus and, accordingly, constitute a part of the record in this case. The major questions for consideration relate to the authority of the Governor of the state of Idaho to issue a warrant of extradition based upon the contents of the requisition proceedings for the surrender of appellant. If those proceedings do not conform to the statutory requirements of this jurisdiction, or, are void for other reasons, then the action of the executive authority of this state was unauthorized in issuing a warrant for extradition to the demanding state. If the appellant was to be extradited, the warrant should be based upon a charge contained in some document accompanying the extradition proceedings and the Governor of this state could not include in his warrant a charge not contained within said proceedings. Said extradition warrant, among other things, is as follows:

"Whereas, His Excellency, Kim Sigler, governor of the state of Michigan, has made a requisition upon me, duly authenticated in accordance with the laws of said state of Michigan, showing that one Ernest R. Videan stands charged by indictment found in the county of Kent, in said state, with the crime of non-support, and that the said Ernest R. Videan is a fugitive from the justice of said state of Michigan, and that he has taken refuge in the state of Idaho.

"Now, Therefore, I, C. A. Robins, governor of the state of Idaho, by virtue of the authority vested in me by law, do hereby command the sheriff of Bannock County, or other officer in this state having lawful authority, to arrest and deliver said Ernest R. Videan, without expense to the state of Idaho, to James Toohey the duly authorized and commissioned agent of the state of Michigan, to receive the said Ernest R. Videan and for so doing this shall be a sufficient warrant."

It will be observed from the aforesaid warrant, dated March 10, 1947 that it is stated therein that Ernest R, Videan stands charged by indictment found in the county of Kent in said state of Michigan with the crime of "non-support." No indictment accompanies the proceedings for the extradition of said Videan. But, to the contrary, the application is based upon the complaint-criminal in two counts, the first count being for "non-support" and the second count for "acts committed in the city of Pocatello, state of Idaho, intentionally resulting in a crime in the state of Michigan," and signed by the former wife of appellant, and which complaint is supported by the affidavit of the prosecuting attorney of Kent County, Michigan, and, in which said affidavit accompanying the application for requisition from the Governor of Michigan to the Governor of Idaho, among other things, is...