Ex parte Hose, No. 1969

No. 1969 | Nev. | Apr 15, 1911

By the Court,

Norcross, J.:

This is an original proceeding in habeas corpus following a similar proceeding in the Second Judicial District Court of the State of Nevada, in and for the county of Washoe, T. F. Moran, district judge, presiding, in which proceeding the lower court refused to discharge the petitioner.

The petition alleges that the petitioner is unlawfully restrained of his liberty by the chief of police of the city of Reno, and the illegality of such detention is based upon the alleged insufficiency of an executive warrant, issued by the governor of this state upon the requisition of the governor of the State of Pennsylvania, for the return of the said petitioner to the latter state, to answer for the crime of desertion.

While the petition alleges that the requisition papers were insufficient, in that they do not contain a description of any offense known to the laws of the State of Pennsylvania, the only contention made in the brief of counsel for petitioner is that the executive warrant of the governor of this state is insufficient to justify the said chief of police in holding the petitioner, upon the ground that it sets forth no defense known to the laws of the demanding state. The executive warrant of the governor of this state is in the usual form, and is not subjected to any objection, other than that the only description contained therein of the offense charged against the petitioner is that of " desertion. ”

Upon the hearing in this proceeding, the original requisition papers issued by the governor of Pennsylvania were submitted in evidence, and, even if it could be said that the executive warrant of the governor of this state was defective, we would not be justified in the discharge of the petitioner, if the requisition papers were sufficient in themselves to justify the governor of this state in issuing his executive warrant.

Attached to the requisition of the governor of Pennsylvania is a certified copy of the original information upon which the criminal proceedings in the demanding state are based. This information charges the petitioner with having, on the 17th day of December, 1910, in the city of York, county of York, State of Pennsylvania, separated himself from his wife and minor child without reasonable cause, and wilfully neglecting to support and maintain his said wife and minor child, they being destitute and depending wholly upon their earnings for adequate support, contrary to the statute in such case made and provided. Throughout all of the papers found in the requisition, this offense is designated as "desertion”; for example, the requisition of the governor of Pennsylvania, among other things, saysWhereas, it appears, by copy of information which is hereunto annexed, which I certify to be authentic and duly authenticated in accordance with the laws of this state, that W. J. Hose stands charged with the crime of desertion, which I certify to be a crime under the laws of this state, ” etc.

The attorney-general, in his brief, has set out in full the statute upon which this proceeding is based, which is entitled " An act making it a misdemeanor for a husband and father to desert and neglect to support his wife or children, prescribing a penalty therefor, and making the wife a competent witness in such cases.” This act, which was passed by the legislature of 1903 (Act of March 13, 1903, P. L. 26), is apparently in lieu of or supplementary to an act of the legislature of the State of Pennsylvania, passed in 1867, which defines the same offense as desertion.

Upon the blank form in use in Pennsylvania, upon which application to the governor of that state was made for requisition, we find the following among the printed rules and suggestions governing the issuance of requisition in that state: "2. Requisitions will not issue in cases of fornication and bastardy, desertion (except under special and aggravated circumstances), nor in any case to aid in collecting a debt,” etc. Thus it appears that an offense denominated " desertion” is recognized under the laws of Pennsylvania, but that it is the policy of that state not to issue requisition to the governor of another state for such offense, " except under special and aggravated circumstances.” That there is no merit in this proceeding, we think too clear, to require citation o'f authorities, a number of which may be found in the brief of the attorney-general supporting our conclusion.

It is ordered that petitioner forthwith surrender himself to the chief of police of the city of Reno, to be delivered into the custody of the duly appointed agent of the State of Pennsylvania for return to that state, and that upon his compliance with this order the cash bail, deposited with the clerk of this court for his release pending this hearing, be returned to him.