Ex parte Devine

Mar 15, 1897

Versions:74 Miss. 715

Terral, J.,

delivered the opinion of the court.

Jоhn Devine, being in the custody of William Price, marshal of the city of Vicksburg, upon extradition proceedings instituted by the governor of the State of Louisiana, sued out this writ of habeas corpus before Chancellor Pintard, to be dischargеd therefrom. Price pleaded the executive warrant of the governor of the State of Mississippi, which is set out in his answer, and appears to be in the usual form of such warrants. At the hearing of the writ, the relаtor excepted to the return, upon the ground that it showed no affidavit or indictment emanating from the authorities of the State of Louisiana, charging him with any crime against the laws of that state. This exception was overruled. Thereupon, the relator offered to traverse the return and to show that the govеrnor of the State of Mississippi, at the time of granting the warrant of extradition, had not received from thе governor of Louisiana a copy of any affidavit or indictment charging the relator with a crime. This оffer was denied him. The relator then offered to show that he had never committed any crime in the Statе of -Louisiana. This offer was refused him. The relator duly excepted to the several rulings of the chancellor, and now here assigns the same as error.

Upon an examination of a good many authoritiеs, we are of the opinion that the third exception is not maintainable. ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍We find no case in which the guilt оr innocence of the relator has been inquired into on habeas corpus proceedings. Such practice, we think, would be inconsistent with the laws relating to the extradition of fugitives from justice, and the current of authority is oрposed to such inquiry. 2 Moore on Extradition, secs. 612, 632; Matter of Fetter, 57 Am. Dec., 395, note; *718Work v. Carrington, 32 Am. Rep., 345 (34 Ohio St., 64); Hartman v. Aveline, 30 Am. Rep., 217 (63 Ind., 34).

We also regard the first assignment as untenable. It is a well sеttled principle of the common law that where acts are of an official nature or require the concurrence of oficial persons, a presumption arises in favor of their due exеcution. This is but an application of the maxim omnia prcesmnunter rite esse acta. Broom’s Legal Maxim’s *944. The principle ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍that the executive warrant is prima facie evidence that all the necessary legal prerequisites have been complied with is sustаined by many, perhaps by all, the authorities on the subject. Davis’ case, 122 Mass., 324; Com. v. Hall, 9 Gray (Mass.), 262; Roberts v. Reilly, 116 U. S. Rep., 80; 9 Am. & Eng. Enc. L., 255, note 4.

The second assignment of error is based upon the refusal of the chancellor to permit the relator to traverse the return, and to -show that there was no copy of an indictment or affidavit emanating from the executive of Louisiana charging the petitioner with any crime produced to the governor of Mississippi when he granted the warrant of extradition.

The power of the executive to extradite fugitives from justice is conferred by § 2162, ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍code 1892, and the conditions of its exercise are prescribed by that statute.

In Learned v. Mathews, 40 Miss., it was held that every special statutory authority, even when applied to acts of public officers, must be strictly executed and all prescribed formalities observed.

In Hopkins v. Sandidge, 31 Miss., 668, the court held that a statute in derogation of the рrinciples of the common law should be strictly construed, and that the courts of most of the states of the union have sanctioned the rule of confining their provisions within the most narrow limits of the language employed. One of the conditions of the issuance of the executive warrant is that the demand of the executive of the state where the crime is charged shall be accompanied with a copy оf the affidavit or indictment, certified as authentic by such executive.

*719In the petition the relator admits thаt he is indicted for embezzlement in Madison parish, Louisiana. But this high authority of surrendering citizens of this state to the оfficers of another state for crime committed in the latter state is to be exercised by the govеrnor ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍upon a copy of the criminal charge duly authenticated — authenticated not by the judge оr clerk of the court where the charge is made, not made known to him by the admission of the person сharged, but by the executive of the state in which the crime is laid.

Section 2227, code 1892, by necessary impliсation, authorizes the courts to investigate, by habeas corpus proceedings, whether persons charged with an offеnse committed in any other part of the United States, ought, agreeably to the constitution of the United States or the laws of the state, to be delivered to the executive power of the state wherе the crime is charged to have been committed. ■

An almost unbroken chain of authorities, in all the courts of the country, both state and federal, which have looked into and passed upon the power of executives in surrendering alleged fugitives from justice, and the conditions ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍under which this authority can be exercised by them, has settled, as we think, the j urisdiction of the courts in the premises. 2 Moore on Extradition and Interstаte Rendition, secs. 628 — 611, inclusive; 7 Am. & Eng. Enc. L. (title Interstate Extradition), 630 et seq.; 28 L. R. A. (note to Hart's case), 801.

We think the relator should have been permitted to show by any competеnt évidenee at his command, that the executive warrant was not based upon a copy of an аffidavit or indictment, for crime, certified to be authentic by the governor of the state of Louisiana.

The judgment of the chancellor is therefore reversed, and the case is remanded for a new trial.