22 S.E.2d 828 | Ga. | 1942
1. A person convicted of a felony in another State, and released on conditional pardon with permission to go into still another State, upon the violation of the terms of his conditional pardon by the commission in the latter State of a Federal offense amounting to a felony, under which he is sentenced to the Federal penitentiary in this State and on completion of his Federal sentence is detained in this State by requisition from the State in which he was first convicted, is a fugitive from justice within the meaning of section 2 of article 4 of the constitution of the United States, and the act of Congress of February 12, 1793, 1 Stat. 302 (18 U.S.C.A. § 622), and subject to extradition by the State where he was first convicted, although he committed no crime in that State subsequently to his conditional pardon.
2. Where the requisition for a fugitive is supported by an affidavit made before a notary public of the demanding State who is not a "magistrate," such affidavit is insufficient to give the executive of the asylum State jurisdiction to grant a warrant based on the requisition. Accordingly, a warrant issued thereon is void, and when attacked as such on habeas corpus it is error for the trial judge to deny release of the relator.
At the hearing Frederick A. Flint, a witness for respondents, testified, without objection, that he was sheriff of Caledonia County, Vermont; that Deering was sent to the Federal penitentiary for the offense of counterfeiting committed by him approximately two years ago in the State of Massachusetts, and not in the State of Vermont; that witness was familiar with the criminal laws of Vermont, and that State has a law against counterfeiting or passing counterfeit money; that witness was familiar with the plea of guilty which Deering entered to the previous charge against him in Vermont in the presence of his counsel in open court before a municipal judge who had jurisdiction on a plea of guilty based on a straight warrant, and there was no indictment nor was an indictment necessary under the laws of Vermont. Respondents also introduced in evidence the requisition with the supporting papers and the warrant granted thereon. Attached to the requisition was a copy of the conditional pardon, the conditions of which were as follows: "Carl Deering shall commit no crime punishable under the laws of this State; shall abstain from the possession and use of intoxicating liquors; shall not associate with persons of evil character; shall lead an orderly and industrious life; shall work and reside at all times where the State Probation Officer directs; shall maintain and support your family to the satisfaction of the State Probation Officer; and shall report your residence and occupation to the State Probation Officer, Montpelier, Vermont, between the first and fifth days of each month, until excused by the Governor." With the requisition was a copy of the warrant of the Governor of Vermont, reciting that Carl Deering was convicted of the crime of receiving stolen property in the State of Vermont and was thereupon, on December 2, 1930, sentenced by Caledonia municipal court in Vermont for a term of not less than one year nor more than ten years in the State prison; reciting further the granting of the conditional pardon and its terms, and that it appeared to the Governor that Carl Deering has violated the conditions of his pardon "in this: convicted in Federal district court October 24, 1940, on plea of guilty of passing, uttering, publishing, and selling Federal reserve notes; sentenced to 2 years Federal penitentiary, Atlanta, *835 Ga.," and commanding the officers directed to apprehend Carl Deering and deliver him to the warden of the State prison in Vermont, to serve the remainder of his term of imprisonment, to wit: "such time as added to the time already served by the said Carl Deering under said sentence will equal the term of his original sentence."
The conditional pardon shows that the Vermont authorities agreed that Deering should reside in Massachusetts, subject to the conditions of the pardon, and that Deering would waive extradition to Vermont; to all of which Deering agreed in writing. Copies of the mittimus, conditional pardon, its revocation, and the warrant of the Governor of Vermont for the pardonee's apprehension were made parts of and attached as exhibits to the affidavit of T. C. Dale, Commissioner of Public Welfare of the State of Vermont. His affidavit sets out that he is the official of the State of Vermont charged by law with authority over conditionally pardoned prisoners, including Carl Deering; that Deering has served only four years and seven months of a ten-year maximum sentence; and sets out other usual facts found in a request for requisition. However, the affidavit of T. C. Dale supporting the request for the requisition shows that the affiant makes the oath before one Dorothy Ellis, who indicates her title and official capacity by the words: "Notary Public," and the imprint of her seal showing: "Dorothy Ellis, Notary Public, State of Vermont." The judge denied the habeas corpus, refused to discharge the prisoner, and remanded him to the custody of the sheriff. To that judgment the petitioner excepted.
1. "Under the ruling of this court inBrown v. Lowry,
2. Another question for decision in this case is whether the affidavit supporting the request for requisition is sufficient. The requisition does not contain a copy of an indictment, and the *837
only affidavit as a basis for the requisition was made by T. C. Dale, Commissioner of Public Welfare of the State of Vermont, before one describing herself after her signature by the words "Notary Public," and having affixed thereto the imprint of a seal with her name and the words "Notary Public, State of Vermont." Particularly the question is whether the provisions of the Federal statute on interstate extradition, providing for the affidavit to be made before a magistrate, are sufficiently complied with when the affidavit is only made before a notary public. Title 18, § 662, U.S.C.A. provides: "Whenever the executive authority of any State or Territory demands any person as a fugitive from justice, of the executive authority of any State or Territory to which such person has fled, and produces an indictment found or an affidavit made before a magistrate of any State or Territory, charging the person demanded with having committed treason, felony, or other crime, certified as authentic by the governor or chief magistrate of the State or Territory from whence the person so charged has fled, it shall be the duty of the executive authority of the State or Territory to which such person has fled to cause him to be arrested and secured, and to cause notice of the arrest to be given to the executive authority making such demand, or to the agent of such authority appointed to receive the fugitive, and to cause the fugitive to be delivered to such agent when he shall appear." The United States Supreme Court, in Kentucky v. Dennison, Governor of Ohio, 24 How. 104 (
In Ex Parte Hart, 63 Fed. 249, 11 C.C.A. 165, the United States Circuit Court of Appeals for the Fourth Circuit said: "The provisions referred to will be strictly construed, and all the requirements of the statute must be respected. . . If they [the States] wish to rely upon the provisions of the constitution and laws of the United States relating to fugitives from justice, they must strictly observe and respect the conditions of the same." See Cook v. Hart,
It is pertinent to ascertain whether the affidavit supporting a request for requisition in the case of a person who has been convicted and is out on conditional pardon can be made before a notary public in lieu of a "magistrate." The case of People v.
Meyering, *840
supra, is at least an instance of physical precedent that in an extradition case the affidavit made before a notary public, supporting a request for the requisition of a convicted person, is not sufficient. A paroled convict who violates the terms of his parole may be extradited from one State to another, on the ground that he is a convict whose term has not expired, and who therefore is "charged with crime" under the United States constitution relating to interstate extradition. 8 A.L.R. 903, Hughes v. Pflanz, supra; Drinkall v. Spiegel,
In Rummerfield v. Watson,
Judgment reversed. All the Justices concur.