Williams v. Robertson

• Decision Date: 01 June 1936
• Parties: Ex Parte Vincent J. Williams, Petitioner, v. Ray Robertson, Agent of State of Illinois
• Court: Missouri Supreme Court

95 S.W.2d 79

339 Mo. 34

Ex Parte Vincent J. Williams, Petitioner, v. Ray Robertson, Agent of State of Illinois

Supreme Court of Missouri

June 1, 1936

Relator remanded.

Irwin & Bushman and Harry L. Buchanan for petitioner.

(1) In order for petitioner to have become a fugitive from justice so as to give the Governor of the asylum state jurisdiction to issue a warrant of rendition for the person sought by the demanding state, it is necessary that the person sought be within the demanding state at the time the indictment alleges the crime was committed. (a) Under the admitted stipulated fact that petitioner was not anywhere in the State of Illinois June 22, 1930, the date on which the indictment alleges the crime was committed therein, petitioner is entitled to his discharge. Keeton v. Gaiser, 55 S.W.2d 305; State ex rel. Gaines v. Westhues, 2 S.W.2d 615; Ex parte Shoemaker, 144 P. 985. (b) Petitioner's defense to the crime alleged being in the nature of an alibi, time is material and the demanding state is bound by the date alleged in the indictment. State v Adair, 160 Mo. 391; State v. Davis, 186 Mo 539; People v. Todd, 301 Ill. 85, 133 N.E. 648; State v. Thompson, 117 Kan. 746. (c) In an extradition matter the Governor of the asylum state must be guided only by the record produced and he has no authority to supplement the indictment with parol or other evidence, nor to look behind it. 11 R. C. L. 734. Whenever an indictment must be proved by a matter of record, the time alleged in the indictment is always material and a variance will be fatal. Rhodes v. The Commonwealth, 78 Va. 696. (d) The Governor of the asylum state had no authority to attach any weight to the State attorney's contention that the grand jury made a mistake as to date in drawing the indictment, because an allegation as to date in an indictment is a matter of substance and cannot be amended by the prosecuting officer without the concurrence of the grand jury that presented it. Mealer v. State, 66 Tex. Cr. Rep. 145, 145 S.W. 353; Dickson v. State, 20 Fla. 800; State v. O'Donnell, 81 Me. 271, 17 A. 66; 31 C. J. 823. (e) Where a definite date of which the crime is charged to have been committed is alleged in the indictment, evidence of the commission of the crime a year apart from the date alleged in the indictment is too great a variance where, as in this case, the date alleged is very material and goes to the very essence of petitioner's defense. (2) The Governor of the asylum state was without authority to issue the warrant of rendition in this case because the Governor of the demanding state in the requisition papers has failed to require or demand the return of petitioner as a fugitive from justice. State ex rel. Gaines v. Westhues, 2 S.W.2d 613; Rummerfield v. Watson, 70 S.W.2d 896.

Roy McKittrick, Attorney General, Wm. Orr Sawyers and Russell C. Stone, Assistant Attorneys General, for respondents.

(1) A person can be extradited only in accordance with the laws and the Constitution of the United States. Const. U.S., Art. IV, Sec. 2; R. S. of the U.S., Sec. 5278, 18 U.S.C. A., Sec. 662; Ex parte Morgan, 20 F. 298; Hughes v. Pflanz, 138 F. 983; Rummerfield v. Watson, 70 S.W.2d 896. (2) Papers submitted by the executive of the demanding state were sufficient under the provisions of the statutes. Roberts v. Reilly, 116 U.S. 95; State ex rel. v. Westhues, 2 S.W.2d 615. (3) Petitioner not entitled to discharge even though there is a variance between the date set forth in the indictment and the time the crime was actually committed as indicated by the papers in support of rendition. Ill. R. S. 1935, chap. 38, sec. 654; Ex parte Regel, 114 U.S. 642; Pierce v. Texas, 155 U.S. 311; Ex parte Hatfield, 235 S.W. 593; Zulch v. Roach, 151 P. 1102. (4) The Governor of the asylum state properly considered all papers submitted for the purpose of determining whether or not the petitioner herein is a fugitive from justice. Munsey v. Clough, 49 L.Ed. 517; R. S. of the U.S., sec. 5278, 18 U.S.C. A., Sec. 662; Hyatt v. Corkran, 188 U.S. 691; Scott on Interstate Extradition, p. 70; Roberts v. Reilly, 116 U.S. 97; State v. Westhues, 2 S.W.2d 615; Keeton v. Gaiser, 331 Mo. 503; Hansen v. Edwards, 240 S.W. 491; Ex parte Swearingen, 13 S.C. 80; McNichols v. Pease, 207 U.S. 112.

OPINION

Tipton, J.

The relator, restrained of his liberty on a warrant of the Governor of this State, issued upon a requisition of the Governor of Illinois, invokes habeas corpus to effect his release. The relator was charged with the crime of robbery, committed in Adams County, Illinois. The person alleged to have been robbed is O. F. Shulian. The agent and messenger for the State of Illinois is Ray Robertson.

"'As has often been said, the duty of the executive of an asylum state to deliver a fugitive from justice to the authorities of a demanding state does not rest upon the principle of comity, but on constitutional obligation. The clause of Section 2, Article 4, of the Constitution . . . creates such duty, and confers the power upon Congress to deal with that subject. Section 5278, Revised Statutes of the United States (18 U.S.C. A., sec. 662), prescribes the terms governing interstate extradition. Sections 3934 and 1908 of the Missouri Statutes disclose on their face that they are intended to be in aid merely of the Federal law.

"'According to said Section 5278 (18 U.S.C. A., sec. 662), before the Governor of one state is authorized to honor the requisition made on him by the Governor of another state for the delivery of an alleged fugitive from justice, these facts must be made to appear; (1) That the person named in the requisition is demanded as a fugitive from justice; (2) that the demanding executive has produced a copy of an indictment found . . . charging the person demanded with having committed a crime; (3) that such copy has been certified as authentic by the Governor of the state making the demand; and (4) that the person demanded is a fugitive from justice. These facts are jurisdictional. [Commonwealth v. Superintendent of County Prison, 220 Pa. St. 401, 69 A. 916, 21 A. L. R. (N. S.) 939.] If they exist, they authorize interstate extradition. If any of them are wanting, the Governor of the state upon whom the requisition is made has no authority to deliver up the person demanded for removal to another state. [Roberts v. Reilly, 116 U.S. 80, 6 S.Ct. 291, 29 L.Ed. 544; Ex parte Spears, 88 Cal. 640, 26 P. 608, 22 Am. St. Rep. 341.] The question of whether or not the Governor in a given case has exceeded his authority, that is, has honored the requisition of the Governor of another state when the jurisdictional facts just referred to, or some of them, were nonexistent, may be determined by a judicial review of the proceedings had before him touching the requisition. Whether he has so exceeded his authority is, however, the only question that may be inquired into by a judicial tribunal. [Drew v. Thaw, 235 U.S. 432, 35 S.Ct. 137, 59 L.Ed. 302; Barranger v. Baum, 103 Ga. 465, 30 S.E. 524, 68 Am. St. Rep. 113; also Sec. 1908, Mo. Stat., supra (Mo. Stat. Ann., sec. 1458, p. 1645).]' (Italics ours.) [State ex rel. v. Westhues, 318 Mo. 928, 2 S.W.2d 612, l. c. 615.]" [Rummerfield v. Watson, 335 Mo. 71, 70 S.W.2d 895.]

The relator contends that the Governor of this State was without authority to issue the rendition warrant because it is admitted that he was not in the State of Illinois on June 22, 1930, the date that the indictment alleges the crime was committed. At a hearing before the Governor of this State the State of Illinois contended that the date alleged in the indictment was a clerical error, that the true date of the alleged crime was June 22, 1929. Accompanying the requisition paper was an affidavit of O. F. Shulian, the prosecuting witness which states that the crime was committed on June 22, 1929. Also, an affidavit of John Nilson to the same effect. In a verified petition for requisition for the rendition of the relator submitted to the Governor of Illinois, the State's attorney, stated that the alleged crime was committed on June 22, 1929.

It is the contention of the relator that in as much as the indictment alleges that the crime was committed on June 22, 1930, the Governor of the asylum state cannot consider other evidence to show that the true date of the alleged crime was some other date than that alleged in the indictment, and as it stands admitted that he was not in Illinois on the date alleged in the indictment, he is entitled to his discharge.

To this contention we do not agree. The presence of the accused in the demanding state at the time of the commission of the crime is necessary to warrant his extradition. The time of the commission of the crime as charged in the complaint is conclusive in the absence of evidence to the contrary, except in those crimes where time is an essential element of the crime itself. Also, the rendition warrant should not be issued, where it is shown that the alleged crime is barred by the Statute of Limitations.

Scott on Interstate Extradition, on page 144, the author said:

"The date on which an alleged crime is charged to have been committed in the demanding State, as mentioned in the indictment or affidavit, accompanying the requisition is not always binding upon the authorities of that State. [1 Pomeroy's Archibald's Cr. Pr. & Pl. 363.] This was the view of the Supreme Court of the United States in the case of McNichols v. Pease (1907), 207 U.S. 100, 61 L.Ed. 121, wherein an attempt had been made to show that the accused was absent from the demanding State, on the day and date, stated in the affidavit as the time when the crime was committed. The Supreme Court of the State of Minnesota in State ex rel. Rinne v. Gerbes (1910), 111...