72 Neb. 703 | Neb. | 1904
In April, 1904, the relator, Thomas Dennison, was, by an indictment of the grand jury of Harrison county, Iowa, charged with the crime of receiving and aiding in the concealing of stolen property knowing the same to be stolen. The crime was alleged to have been committed in November, 1892, in Harrison county, Iowa. Upon this indictment, a requisition was issued by the governor of Iowa upon the governor of this state, upon which a warrant Avas issued by the governor of this state for the arrest of the relator as a fugitive from justice, and for his return to the state of Ioiva for trial. He made application to the district court for Douglas county for a writ of habeas corpus, and upon the hearing of that application he Avas remanded to the custody of the officers under the governor’s Avarrant. He prosecutes these proceedings in error to this court to revieAV that decision. The record shows that the relator Avas at the time of the alleged offense a resident of the city of Omaha, in this state, and that he has since that time openly and notoriously continued his residence there. The right of the officers and of the special agent of the state of IOAva, designated by the governor’s warrant for that purpose, to restrain the relator of his liberty under the governor’s warrant Avas resisted upon various grounds; and, among others, it Avas insisted by the relator that he Avas not in the state of Iowa at the time of the alleged commission of the offense, and was therefore not a fugitive from the justice of the state of
This case was heard below before three judges of the district court sitting together. It appears that they were
“Section 384 contains a proviso at the end of the section. The first part of the section provides that no person shall be removed from the state of Nebraska to any other state, a prisoner, for any crime committed within the state of- Nebraska. It then provides certain penalties against any persons who are interested and take part in any such removal; Provided, however, that any person who has committed any crime in any other state, where he ought to be tried for that crime, may be sent to that other state, and it is that proviso which it is claimed warrants the extradition, regardless of the question of whether or not he is a fugitive? from justice. .
“This section 364 contains in the first part an exception, ‘Except in cases specially provided for,’ that is, no removal shall be had except in cases specially provided for by statute. It first came upon the statute books of this state by an act passed in 1858, approved November 4, and Avas section 0 of that act, and the exception which I have just read doubtless had reference to cases provided for by another law in existence at that time, and not noAV upon the statute books, providing that the governor of the state might enter into contracts Avith the governors of other states for the care of prisoners sentenced by the courts of this state for crimes committed in this state, because at that time there? Avas no adequate proAdsion in this state for taking care of such prisoners, and the exception AA'hieh I have just read doubtless had reference to that special provision of the law.
“Bection 333, Avhich is declaratory of the law of the*709 United States, authorizes the governor to extradite an accused when he has committed a crime, or stands charged with the commission of a crime in any other state and is a fugitive from justice of that state, because the provision is that, in cases provided for by the constitution and laws of the United States, the governor shall issue his Avarrant when it is made to appear that the defendant stands charged, etc. Under that section it must appear that the defendant was a fugitive from justice, otherwise the goA'ernor has no poAver to issue his Avarrant. That section I have been unable to find prior to the Revised Statutes of 1866. No doubt it Avas passed prior to that time; but it Avas not in the criminal code of 1858 so-called, or the collation of the criminal Mays in 1858, and doubtless was a subsequent enactment to section 364. Believing that to be true, it probably Avas intended by this proviso to except or exclude from the prior provisions of that section cases of extradition. * * * No provision in this state Avitli reference to extradition appears prior to this section 364. * * * These tivo Mays were incorporated into the revision of 1866, and also that of 1873, and have been continued in the statute books from that time down to the present, and they are two provisions apparently referring to the same subject. In that case it is the duty of the court to harmonize them if possible.
“Under section 364, Avhen originally enacted, and until the enactment of section 333, there Avas no method provided bv the state for the enforcement of that act — no poAver granted by the state to the governor to issue his Avarrant in such cases. The poAver Avas given and the duty imposed, hoAvever, by the United States statute. * * * While the existence of these tivo sections is something of an anomaly in a statute, by construing them together under the ordinary rules in the construction of statutes so that it may be possible that bot-h may stand, Ave conclude that section 333 is the only one Avhich grants poAver from the state to the executive to issue his Avarrant for extradition, and that the effect of that section is to re*710 strict his power to such cast's as are provided for by the constitution and laws of the United States.”
The language of the proviso of section 364 of the criminal code, which is referred to, is:
“Provided, That if any citizen of this state, or any person or persons at any time resident in the same, shall have committed, or shall be charged with having committed, any treason, felony, or misdemeanor, in any other part of the United State's or territories where he or she ought to be tried for such offense', he, she, or they may be sent to the state or territory having jurisdiction of the offense.” For the reasons stated by the learned district court, we think that this proviso ought not to be construed to provide for extradition in cases not contemplated by the federal statute; but its purpose is rather to so limit the application of section 364 as not to interfere with the legislation of congress on the subject of extradition. No extradition therefore can be allowed unless it appears that the accused is a fugitive from justice.
“It is conceded that the'determination of the fact (that the accused is a fugitive from justice) by the executive of*711 tlie state in issuing his warrant of arrest, np,on a demand made on that ground, whether the writ contains a recital of an express finding to that effect or not, must be regarded as sufficient to justify the removal until the presumption in its favor is overthrown by contrary proof.”
It is not necessary that the writ contain an express recital that the governor found that the accused was a fugitive from justice. The fact of the issuing of the warrant, upon demand made upon that ground, is sufficient to justify the presumption that the governor so found, until that presumption is overthrown by proof to the contrary.
“There is no allegation, statement or suggestion that Governor Cummins or anybody else presented to the governor of this state any proof whatever that Dennison had fled from the justice of the state of Iowa; no allegation or statement that Dennison was a fugitive — Simply that the governor demanded him as a fugitive; no statement or allegation that he was charged with crime in the demanding state, but simply a statement that he was demanded by the governor as one charged with crime;. no statement, averment or suggestion that the demanding governor produced or caused to be produced to the governor of this state a copy of an indictment found,, or affidavit made, before a magistrate, charging Dennison with having committed a crime; no statement, averment or suggestion that the executive of Iowa produced or caused to be produced a copy of an indictment found, or affidavit made, before a magistrate, charging Dennison with having committed a crime, either certified or otherwise.”
Some of the things above suggested are shown in the application itself for the writ of habeas corpus. Others
“When a demand of this character is made on the governor of a state, two questions are presented to him: First, is the person demanded substantially charged with a crime against the laws of the state from whose justice it is alleged that he has fled, by an indictment.or affidavit properly certified? Second, is he a fugitive from justice from the state demanding him?” Bruce v. Rayner, 124 Fed. 481.
When the accused is in custody under the governor’s warrant, it is necessary for him, in order to obtain his discharge by the courts upon a writ of habeas corpus, to make it appear, either that he is not “substantially charged with a crime against laws of the state from whose justice it is alleged that he has fled, by an indictment or affidavit properly certified,” or that he is not a fugitive from justice from the state demanding him. ■ When it is made properly to appear to the court upon what showing the governor acted, it becomes a question of law for the court to determine whether or not the accused has been substantially charged with a crime, against the laws of the demanding state. If the governor’s warrant upon which
“It must appear to the governor, before he can lawfully comply with the demand for extradition, that the person demanded is substantially charged with a crime against the laws of the state from whose justice he is alleged to have fled, by an indictment or an affidavit, etc., and that the person demanded is a fugitive from the justice of the state the executive authority of which makes the demand. * * * The question whether the person demanded was substantially charged with a crime or not was a question of law and open upon the face of the papers to judicial inquiry upon application for a discharge under the writ of habeas corpus; the question whether the person demanded was a fugitive from the justice of the state was a question of fact which the governor upon whom the demand was made must decide upon such evidence as he might deem satisfactory.”
Prior to that decision there had been much controversy and some conflicting decisions in the courts of the several states as to whether the decision of the governor that the accused was a fugitive from justice might be reviewed judicially in proceedings in habeas corpus. In some cases the decision of the governor was thought to be conclusive upon the courts, and in others it seems to have been considered as open to investigation -as an original question. In Hyatt v. Corkran, supra, it was shown by stipulations upon the record itself that the accused was not in the demanding state at the time of the alleged commission of
“If upon a question of fact, made before the governor, Avhich he ought to decide, there Avere evidence pro and con, the courts might not be justified in revieAving the decision of the governor upon such question. In a case like that, where there Avas some evidence sustaining the finding, the courts might regard the decision of the governor as conclusive.”
In Bruce v. Rayner, 124 Fed. 481, it was said by the circuit court of appeals of the fourth circuit:
“If conflicting evidence has been submitted to the governor of the state in which the person is found upon the question of fact, and he, considering it,' had decided to deliver the person demanded, the presumption being alAvays in favor of the governor’s decision, the courts will not inquire into and reverse his decision.”
And to support this proposition the above language from Hyatt v. Corkran, supra, was quoted by the court. These are the latest expressions of the federal court upon this question that have been brought to our attention. There can be no doubt that this record shoAVS that the question' AArh ether the accused Avas a fugitive from justicie was before the grwernor; that there Avas sufficient evidence before him to make it appear, at least prima facie, that the accused Avas a fugitive from justice. Under the rule established by the federal courts in the above cases, this was sufficient to justify the remanding of the relator, unless it appeared from the record itself that he Avas not a fugitive from justice, or Avas made to appear by such clear and invincible proof that it can be said from the Avhole evidence that there Avas no dispute before the governor in regard to the fact. If the facts from Avhich it is to be determined Avhether the accused is a fugitive from justice are established by the record, or if they are so established by proof
The relator undertook to prove that he was not in the state of Iowa at the alleged time of the offense charged against him. There is no doubt of the competency of this proof, nor that, if this fact was conclusively shown upon the record, or was so proved that it could be said that there was no substantial dispute in regard to it, it would require the discharge of the accused. To establish this proposition, the relator himself testified that he was in Omaha, Nebraska, from the end of October, 1892, down to the first of January, 1893; that on the night of November 4 he stayed at the Arcade hotel, in Omaha, and that he was not at any time during the period from that time to the first of January following in the state of Iowa'. He produced several witnesses who corroborated him in these statements. Although the occurrence was some 12 years before this hearing, these witnesses testified that their attention had been particularly called to the facts at the time, and their testimony was positive that he was not out of the city of Omaha during that time. There are circumstances tending, at least in some degree, to discredit this testimony, and even though there were not, the statements of these witnesses are contradicted by other evidence; and without going into a detailed statement of the evidence that was adduced upon this point, it is sufficient to say that the testimony of these witnesses is not of such a character, in view of the other evidence in the record, as to enable us to say that the matter was established beyond dispute. It seems clear therefore that the evidence upon the hearing in the district court, which is conceded to be competent, shows that all questions of fact necessary
Objection was made to the cross-examination of the relator, and it seems that upon this cross-examination matters were inquired into that had no relevancy to the questions being investigated; but, from the view that we take of the effect of the competent evidence in this case, and considering that the evidence was to be weighed by the court itself, we cannot see that any prejudicial error against the relator was committed.
The. judgment of the district court ivas the. only one possible upon the evidence before it, and is
Affirmed.