Waggoner v. Feeney

• Court: Indiana Supreme Court
• Citation: Waggoner v. Feeney, 220 Ind. 543, 44 N.E.2d 499 (Ind. 1942)
• Decision Date: 12 November 1942
• Docket Number: 27620.
• Parties: WAGGONER v. FEENEY, Sheriff.

44 N.E.2d 499

220 Ind. 543

WAGGONER v. FEENEY, Sheriff.

No. 27620.

Supreme Court of Indiana

November 12, 1942

Appeal from Superior Court, Marion County; Russell J. Ryan, judge.

Geo R. Jeffrey and Kothe & Shotwell, all of Indianapolis, for appellant.

Victor R. Jose, Jr., of Indianapolis, for appellee.

ROLL Chief Justice.

Appellant filed his petition in the court below for a writ of habeas corpus alleging he was unlawfully restrained of his liberty by appellee, by virtue of a warrant of extradition issued by the Governor of the State of Indiana, upon a requisition from the Governor of the State of Wisconsin. It was alleged in the requisition papers, that appellant had committed a crime of obtaining goods by false pretenses in the State of Wisconsin for which they sought to extradite appellant.

There is no suggestion that the requisition papers and proceedings were not in due form. Only one contention is made on this appeal, and that contention relates to the sufficiency of the affidavit filed against appellant in the State of Wisconsin.

It is urged by the appellant that the affidavit upon which the requisition was based, was defective in two particulars first, that the affidavit shows, on its face, that the crime attempted to be charged was barred by the statute of limitations; and second, that the affidavit did not charge a public offense.

The affidavit is as follows:

'Milwaukee County, Wis. State of Wisconsin Milwaukee County} SS:

In the District Court of the County of Milwaukee

The State of Wisconsin Plaintiff

vs.

Cleveland Waggoner Defendant}

'Jacob Frutiger, being first duly sworn on oath, complains to the District of the County of Milwaukee, that Cleveland Waggoner, on the 7th day of March, A. D., 1932, in the County of Milwaukee, Wisconsin, did unlawfully, knowingly, and designedly, falsely pretend to Jacob Frutiger, that he, the said Cleveland Waggoner, was then and there an agent of the United Cheese & Food Products Company of Indianapolis, Indiana, and was authorized to purchase goods and charge the same to the account of said company, and the said Jacob Frutiger then and there believing said false pretenses so made as aforesaid by the said Cleveland Waggoner to be true, and relying thereon, being misled therein and deceived thereby, was induced, by reason of the false pretenses so made as aforesaid, to deliver, and did then and there deliver to the said Cleveland Waggoner 19,236 pounds of cheese of the value of Twenty-three Hundred Eighty-one and 84/100 Dollars of the goods, chattels and property of the said Jacob Frutiger, and the said Cleveland Waggoner did then and there obtain the said goods, chattels and property of said Jacob Frutiger by means of false pretenses aforesaid, and with intent to defraud, Whereas, in truth and in fact said Cleveland Waggoner was not then and there an agent of the United Cheese and Food Products Company of Indianapolis, Indiana and he was not authorized to purchase goods and charge the same to the account of said company, all of which he, the said Cleveland Waggoner then and there well knew, by color and means of which false pretenses so made as aforesaid, he, the Cleveland Waggoner, did then and there unlawfully, knowingly, and designedly obtain from him, and said Jacob Frutiger the said goods, chattels and property, of the goods, chattels and property of him, the said Jacob Frutiger with intent to defraud, contrary to the statute in such case made and provided and against the peace and dignity of the State of Wisconsin, and prays that the said Cleveland Waggoner may be arrested and dealt with according to law.

'Subscribed and sworn to before me this 19th day of June, A. D. 1941.

'Jacob Frutiger

'Harold S. Gavett

'Acting Clerk of the District Court.'

The only evidence introduced at the hearing before the trial court was in the form of stipulations. It was stipulated that § 353.21, St.Wis.1937 provides: 'An indictment or information for any offense which may be punished by imprisonment in the state prison, except murder, must be found or filed within six years after the commission thereof unless otherwise provided by law.'

It was further stipulated that § 353.23, St.Wis.1937 provides: 'Any period of time during which the party charged with any offense was not usually and publicly a resident within this state or during which any prosecution by indictment, information or otherwise against him for such offense was pending, shall not be computed as any part of the time of limitation mentioned in sections 353.21 and 353.22.'

It was further stipulated that appellant returned from Wisconsin to Indiana in July 1933, and ever since has been a resident of the State of Indiana.

The affidavit charges that the alleged crime was committed by the appellee on March 7, 1932. The record shows that the affidavit was executed on June 19, 1941. Therefore, it appears affirmatively that more than six years had elapsed between the date upon which the alleged crime was committed and the filing of the affidavit. It is upon this state of facts that the appellant bases his contention that the statute of limitations has barred the action, and therefore the extradition should be denied.

The question thus presented has been considered by the United States Supreme Court, certain federal courts, and some of the state courts. The result reached by the various courts was governed by a determination of whether the statute of limitations should be treated as a defense, or should it be considered in determining whether or not the defendant was a fugitive from justice. The courts holding that the statute of limitations is a defense and must be asserted on the trial of the defendant in criminal cases in the state having jurisdiction of the offense, are: Biddinger v. Com'r of Police of City of New York, 245 U.S. 128, 38 S.Ct. 41, 62 L.Ed. 193; Pierce v. Creecy, 210 U.S. 387, 28 S.Ct. 714, 52 L.Ed. 1113; State ex rel. Munsey v. Clough, 1902, 71 N.H. 594, 53 A. 1086, 67 L.R.A. 946; People ex rel. Leach v. Baldwin, 1930, 341 Ill. 604, 174 N.E. 51; State ex rel. Kollman v. Johnson, 1931, 184 Minn. 309, 238 N.W. 490.

Perhaps the controlling case on this question is the case of Biddinger v. Com'r of Police of City of New York, supra. The U. S. Supreme Court in discussing the question of the statute of limitations said:

'This much, however, the decisions of this court make clear: That the proceeding is a summary one, to be kept within narrow bounds, not less for the protection of the liberty of the citizen than in the public interest; that when the extradition papers required by the statute are in the proper form the only evidence sanctioned by this court as admissible on such a hearing is such as tends to prove that the accused was not in the demanding state at the time the crime is alleged to have been committed; and, frequently and emphatically, that defenses cannot be entertained on such a hearing, but must be referred for investigation to the trial of the case in the courts of the demanding state.

'The statute of limitations is a defense and must be asserted on the trial by the defendant in criminal cases (United States v. Cook, 17 Wall. 168, 21 L.Ed. 538), and the form of the statute in Illinois, which the appellant seeks to rely upon, makes it especially necessary that the claimed defense of it should be heard and decided by the courts of that state (Pierce v. Creecy, 210 U.S. 387, 28 S.Ct. 714, 52 L.Ed. 1113; Charlton v. Kelly, 229 U.S. 447, 33 S.Ct. 945, 57 L.Ed. 1274, 46 L.R.A.,N.S., 397; Drew v. Thaw, 235 U.S. 432, 35 S.Ct. 137, 59 L.Ed. 302; Reed v. United States [9 Cir.], 224 F. 378, 140 C.C.A. 64; Depoilly v. Palmer, 28 App.D.C. 324.' [245 U.S. 128, 38 S.Ct. 43, 62 L.Ed. 193]

The same rule was adhered to by the United States Supreme Court in the case of Pierce v. Creecy, supra. In Kollman v. Johnson, supra, the court observed, and we think correctly, that the interpretation of the Federal Constitution and the acts of Congress by the Supreme Court of the United States is binding on all state courts, and consequently, the Minnesota Court held that the statute of limitations, as a matter of defense, must be asserted on the trial of the case in the demanding state, citing the Biddinger case above cited.

In Bruce v. Rayner, 4 Cir., 1903, 124 F. 481, 62 C.C.A. 501, affirmed in 1905, Bruce v. Bryan, 4 Cir., 136 F. 1022, 69 C.C.A. 342 the court held that proof of the running of the statute of limitations against a prosecution on an offense for which extradition was sought was admissible in habeas corpus proceedings for the release of one detained under a warrant for such extradition, saying that such testimony did not go to the sufficiency of the indictment or to any matter of defense, but directed solely to the question of fact whether the person whose surrender was demanded was a fugitive from justice. (Our italics.)

In State ex rel. Mvers v. Allen, 1922, 83 Fla. 655, 92 So. 155, it was held that a person who is not subject to prosecution for crime in the demanding state is not a fugitive from justice, and that where there is no doubt of the applicability of the statute of limitations of the demanding state to the offense with which he...