Chavers v. StateChavers v. State
Lead Opinion
This is an appeal from a Judgment of the Circuit Court of Calhoun County denying appellant’s discharge in a habeas corpus proceeding.
The rendition warrant of the Governor of Alabama.recites:'
“Whereas, His' Excellency, Ross R. Barnett, Governor of the State of Mississippi, by requisition dated the 28th day of December, 1961, has demanded of me, as Governor of the State of Alabama, the surrender of Cecil Chavers who, it appears, is charged by affidavit and warrant, in the County of Greene in said State, with the crime of burglary and grand larceny, as shown by affidavit and warrant (a duly certified copy of which affidavit and warrant accompanied said requisition) and it appearing that Cecil Chavers has fled from justice in said State and taken refuge in the State of Alabama.”
The requisition of the Governor of Mississippi shows:
“Whereas, It appears by the annexed copy of an affidavit & related papers which is hereby certified to be authentic, that Cecil Chavers stands charged with the crime of Burglary and Grand Larceny committed in the County of Greene in this State, and it has been represented to me that he has fled from this State and has taken refuge in the State of Alabama.”
Counsel for petitioner objected to the court’s considering the rendition warrant and the requisition on the grounds that the affidavit and warrant was not attached to the request of the Governor of Mississippi. The court overruled the objection.
It is well settled that where, as here, the rendition warrant recites the essentiál' jurisdictional facts, the presumption is that the Governor issued his warrant upon proper authority, and in order to make out á prima facie case for petitioner’s detention it is not required that the return be accompanied by a certified copy of the accusation from the demanding state. Morrison v. State,
Petitioner recognizes the foregoing principle, but insists that by attaching to the return the requisition of the Governor of Mississippi without also attaching a' copy of the affidavit the respondent contradicted the prima facie showing made by the rendition warrant. His argument is based upon the theory of our decisions to the effect that where the state introduces into evidence, in addition to the rendition warrant, the requisition of the governor of the demanding state, and it shows on its -face that it was insufficient upon which to predicate the rendition warrant the petitioner should be discharged. The cases cited and relied on by petitioner are as follows: Kelley v. State,
The requisition of the Governor of Mississippi was in proper form. The absence of an affidavit did not tend to negative the prima facie case made by the recitals of the rendition warrant. State v. Smith, supra; Clayton v. State, supra; Blanton v. State,
The record contains the following:
“Comes now the petitioner, Cecil Chavers, and demands the right to inspect the requisition of the Governor of the State of Mississippi and the accompanying paper for extradition of your petitioner to the State of Mississippi.”
Affirmed.
Dissenting Opinion
(dissenting).
Respectfully, I vote to remand this cause. In spite of petitioner’s demand for inspection of a certified copy of an indictment or affidavit charging him with felony or other crime in Mississippi (
Ex parte State, in re Mohr,
Roberts v. Reilly,
Our statute is emphatic in its concern that the executive act be judicially examined. Code 1940, T. 15, § 57, provides in part:
“No person arrested upon such warrant shall be delivered over to the agent whom the executive authority demanding him shall have appointed to receive him unless he has been informed of the demand made for his surrender and of the crime with which he is charged, and that he has the right to demand legal counsel; and if the prisoner, his friends, or counsel shall state that he or they desire to test the legality of his arrest, the prisoner shall be taken forthwith before a judge of a court of record in this state, who shall fix a reasonable time to be allowed him within which to apply for a writ of habeas corpus. * ‡ %
My colleagues would exalt a presumption of regularity into a rule of law rather than merely one of evidence. To my view, after demand for production of either an indictment or affidavit, the State’s failure to show any paper charging a crime makes the requisition warrant from the Governor of Mississippi contradict itself and the recitals of the rendition warrant. To me, the McGahagin case is indistinguishable from this one.
That I am not alone in this view, would appear from the majority opinion in McFarlin v. Shirley,
“1. ‘When in the trial of a habeas corpus case, it appears that the respondent holds the petitioner in custody under an executive warrant based upon on (sic) extradition proceeding, and the warrant is regular on its face, the burden is cast upon the petitioner to show some, valid and sufficient reason why the warrant should not be executed. The presumption is that the Governor has complied with the constitution and the law, and this presumption continues until the contrary appears.’ Blackwell v. Jennings,128 Ga. 264 (2),57 S.E. 484 .
“2. While the evidence offered by the petitioner in the present case can not be held, as a matter of law, to be sufficient to overcome this presumption, the respondent having tendered in evidence, over proper objections of the petitioner, the requisition of the Governor of the State of South Carolina without ‘a copy of an indictment found or an affidavit made before a magis*589 trate’18 U.S.C.A., § 3182 , the respondent in effect contradicted the prima facie showing made by the warrant alone, and thus showed that the petitioner was being illegally restrained, in that the warrant was not based on a valid requisition. The trial court, therefore erred in remanding the peti- ■ tioner to the respondent.”
Moreover, even without petitioner’s demand for the accompanying papers, it is persuasively arguable that the requisition warrant’s failure to have “annexed” (as it recites) the charging affidavit would rebut any presumption arising from the recitals of the Governor of Alabama in the rendition warrant. Thus, in State ex rel. Daugherty v. Payne,
“In his answer respondent [sheriff] denies the illegality of his restraint of relator and says that that restraint is lawful and regular by reason of the three documents exhibited with his answer and which we have already detailed.
“If the respondent had exhibited only the rendition warrant of the Governor of Tennessee, his possession of the necessary documents would have been presumed on account of that warrant’s recitals and as the Attorney General insists; but when the respondent goes farther and exhibits the warrant from the Parole Board and that from the Governor of New York, alleging that they are the process upon which he relies to make his restraint of relator legal and regular, we are bound to infer from this allegation that these are the documents in the case. The inclusion of these under such an allegation is the exclusion of all others.”
Opposed to McFarlin and Daugherty is the Texas case of Ex parte Gradington,
I cannot subscribe to the notion that, after the sheriff’s return was in, the petitioner then had the burden of proof or persuasion. The papers to send petitioner off were in the custody of the State’s officials and once having asked for them, what else could he do?
Nothing in Johnson v. State,
Harris v. State,
We should not forget that extradition, while ordinarily a means to keep criminals from finding territorial asylum, is a kind of deportation that exists only by reason of law (Art. IV, § 2, cl. 2, U.S.Const.;