104 N.J. Eq. 560 | N.J. Ct. of Ch. | 1929
The return to the writ of habeas corpus manifests that Joseph Cohen is detained in custody as a prisoner by reason of a commitment issued out of and under the seal of the parole commission of the city of New York, and a warrant for rendition issued by the governor of New Jersey. The warrant for rendition issued by the governor of New Jersey, and the requisition therefor made by the governor of New York appear to be in due form. The detainer lodged with the jailer, and which he refers to in his return as a copy of a commitment issued out of and under the seal of the parole commission of the city of New York, appears to be, in fact, a warrant, in due form, issued by said commission under date of January 12th, 1928. Said warrant contains the following recitals:
"Whereas it has come to the knowledge of the parole commission of the city of New York that Joseph Cohen, now on probation and heretofore convicted in the special sessions — New York court, city and State of New York, for the crime of petit larceny, and was committed to the custody of the warden, deputy warden and keepers of the penitentiary at Welfare Island, city and State of New York, for an indeterminate sentence under the provisions of chapter 579 of the laws of 1915, and that in accordance with said provisions of law the parole commission of the city of New York did conditionally parole said probationer outside the buildings and enclosures of said institution;
"And whereas it has come to the knowledge of said commission that said probationer has violated the conditions of his parole and has thereby forfeited his right to remain longer on parole;
"Now, therefore, by virtue of said authority vested in the parole commission aforesaid under the provisions of chapter 579 of the laws of 1915, it is hereby ordered that said Joseph Cohen be forthwith arrested and returned to the institution to which he has been committed, to serve as much of the remainder of his sentence as said commission shall hereafter determine." *562
An endorsement on said warrant reads as follows: "5/14/28 Sentenced to the Hudson Co. Penitentiary — 2 months, stealing from mails, by Judge Bondy, Federal Court, N.Y."
The only question submitted to me by counsel for determination in the matter sub judice is whether the prisoner, Joseph Cohen, is a fugitive from justice from the demanding state, New York. The rule of law has been well established that on habeas corpus
the accused is entitled to show, at any time before his actual surrender to the demanding state, that he is not a fugitive from justice within the meaning of the constitution and laws of the United States, the question being one of fact, upon which the executive determination is not conclusive, and upon which accused is entitled to introduce evidence. It cannot be disputed that the governor's warrant, in the matter sub judice, is prima facie
evidence that the accused, Joseph Cohen, is a fugitive from justice. The burden of overcoming the prima facie case made by said warrant is upon the accused. I do not consider he has sustained such burden. A "fugitive from justice" is ordinarily defined as one who removes himself from the jurisdiction within which he committed a crime. It is urged by counsel that to sustain the allegation that the prisoner, Joseph Cohen, is a fugitive from New York, it must be shown that he has fled from justice, and that to "flee" means to run away, and inasmuch as it is conceded in the matter sub judice that the accused did notvoluntarily depart the jurisdiction of the State of New York, he cannot be considered a fugitive from justice. It is conceded that the accused, while at liberty under the aforesaid conditional parole, was convicted of an offense against the federal laws, and sentenced by Judge Bondy, of the United States district court, for the southern district of New York, to imprisonment in a penal institution in New Jersey. It is urged that by reason thereof the departure of the accused from New York and his presence in New Jersey must be regarded as involuntary, and therefore the accused is not subject to rendition by virtue of the warrant of the governor of New Jersey upon the requisition of the governor of New York charging him with the crime *563
of petit larceny. I am of the opinion that the argument of counsel for the accused, and his objection to the latter's rendition to the New York authorities, is without merit. I am also of the opinion that the accused, convicted of crime in New York, for which he was sentenced to imprisonment and incarcerated in a penal institution within said state where he served part of his sentence, and released therefrom under a parole conditional, among other things, that he remain within the jurisdiction of the State of New York, having departed from the jurisdiction of said state before being released from such parole, is a fugitive from justice, within the purview of the law. The motive or reasons which brought about the departure of the accused from New York must be regarded as immaterial. The mere fact that he is found within the State of New Jersey is prima facie proof that he fled the jurisdiction of New York, and he must, in my judgment, be regarded for the purpose of the matter sub judice as a convict who has escaped from the New York authorities, and, found within this state, be regarded as a fugitive from justice in the demanding state, New York. I am not unmindful of the decisions of our court. In re Voorhees,
I will advise an order dismissing the writ of habeas corpus heretofore granted in the above entitled matter, and directing therein that the accused, Joseph Cohen, be delivered to the agent of the parole commission of the city of New York named in the rendition warrant issued by the governor of New Jersey.
