In re Hess

5 Kan. App. 763 | Kan. Ct. App. | 1897

1. Jurisdiction.

Dennison, P. J.

It is contended on behalf of the

petitioners that the District Court of Woodward County, Oklahoma, had jurisdiction of the petitioners. The case of Taylor v. Taintor (16 Wall. 366) and other cases are cited in support of the contention. That on December 18, 1896, the Woodward County District Court had jurisdiction of the petitioners, is not controverted. Neither is there any question that on that day the Territory of Oklahoma waived its jurisdiction by the act of its Governor in delivering up the petititioners to the agent of the State of JCansas Upon the requisition of the (governor. By such delivery and surrender the Territory of Oklahoma can no longer require their appearance before her tribunals, and all obligations which she has taken to secure that result, thereupon, at once, ipso facto, lose their binding effect, and no action can be maintained upon the bonds given to secure their appearance before the Woodward County, Oklahoma, District Court. See Taylor v. Taintor, supra, and Am. & Eng. Ency. of Law, vol. 7, p. 643, § 19 aná notes 2 and 3, and authorities there cited.

It is also contended that the petitioners were not fugitives from justice within the meaning of the law. They were charged with the larceny of a calf in Woodward County, Oklahoma, and with driving the same calf into Clark County, Kansas, after having stolen it in Woodward County. The petitioners were in Clark County, Kansas, at the time the calf was alleged to have been brought into said county, and went from there to Woodward County, Oklahoma, where the calf is alleged to have been stolen. It is contended that instead of fleeing from justice they returned to the place where the crime is alleged to have been committed.

The petitioners are being prosecuted in Kansas, for the violation of paragraph 2559 of the General Statutes of 1889, which reads as follows :

“Every person who shall steal or obtain by robbery the property of another, in any other state, territory or country, and shall bring the same into this State, may be convicted and punished for larceny in the same manner [as] if the property had been feloniously stolen or taken within this State ; and in any such cases, the larceny may be charged to have been committed, and may be indicted and punished, in any county into or through which such stolen property shall have been brought.”

2. “Flee from justice.”

The petitioners are charged with an offense against the State of Kansas by bringing stolen property into it. The Kansas authorities do not charge them with an offense against the Territory of Oklahoma but against The State of Kansas. When a complaint was made and a warrant issued for their arrest to answer for their infraction of Kansas laws, they were not in Kansas. They were in Oklahoma, having gone from Kansas after the alleged commission of crime in Kansas. ‘ ‘ The term ‘flee from justice'in article IV, section 2, of the Constitution of the United States, includes cases where a citizen of one state commits a crime in another state and then returns to his home.” Ex parte Swearingen, 13 S. C. 74. See also Am. & Eng. Ency. of Law, vol. 7, p. 646, § 23, and notes.

3. Procedure where crimes against two states.

Counsel for the petitioners also contend that, because of the peculiar nature of the crime alleged to have been committed, the ordinary interpretation of the term “fugitive from justice” does not apply. That the qualifications contained in paragraph 2560 of the General Statutes of 1889 provide that a former conviction or acquittal for the same offense in another state, territory or. country, shall be a bar to other or further proceedings against the accused. These two paragraphs construed together provide that a person may be convicted and punished for the larceny of property, if he brings stolen property within the borders of the State, although .tí» the theft may have occurred outside of the State ; but if the person has been either convicted or acquitted of therlarceny of the same property elsewhere, such conviction or acquittal is a bar to any other or further proceedings against him for the larceny of such property.

4. Statutes of other states-

It is argued that a conviction or acquittal in Kansas is not, under the statutes of Oklahoma, a bar to another trial for the larceny of the same J property in Oklahoma. The statutes of Oklahoma were not introduced in evidence and are not stated in the agreed statement of facts. We must therefore presume that they are the same as our own statutes upon the same subject. See Scott v. Baird, ante, p. 560, and cases there cited. Counsel for the petitioners also contend that the application to the Governor of Oklahoma was not made in good faith. Paragraph 3175 of the General Statutes of 1889 provides that the application must be ‘‘ accompanied by sworn evidence that the party charged is a fugitive from justice, and that the application is made in good faith for the punishment of crime, and not for the purpose of collecting a debt, or pecuniary mulct, or of recovering the alleged fugitive to a foreign jurisdiction, with a view there to serve him with civil process.”

If the proper affidavit was not presented to the Governor of Kansas we are not advised of it. It does not appear whether or not the county attorney of Clark County or the Governor of Kansas knew that the petitioners were arrested in Woodward County, Oklahoma. We would suppose they did not know that such was the case, for the reason that if they had known that the original theft had occurred in Woodward County, Oklahoma, and that the guilty parties had been apprehended and,were under bonds to appear before the district court of that county to answer for the offense, they would have permitted Woodward County, Oklahoma, to be at the expense of'prosecuting, convicting and caring for her own criminals, instead of burdening Clark County, Kansas, with it. However, if they had known these things they could, if they had so desired, have proceeded in the same manner in which they did proceed.

It is claimed by the respondent that the action of Judge Dale of the District Court of Woodward County, Oklahoma, in refusing to release the petitioners upon the habeas corpus proceedings prosecuted before him, is a waiver of the jurisdiction of the Territory of Oklahoma over the persons of the petitioners. We cannot assent to this claim. However, the action of the Governor of Oklahoma in honoring the requisition of the Governor of Kansas, is such a waiver.

It follows from what has already been said in this opinion, that the petitioners, Charles Hess and Reuben Orr, were charged with having committed an offense against both Oklahoma Territory and the State of Kansas, and that Oklahoma Territory first obtained jurisdiction of the persons of the petitioners ; that the Executive of Oklahoma Territory waived such jurisdiction and turned them over to the authorities of Kansas, and that they are now legally in the custody of Geo. M. Grimes, respondent, as Sheriff, to answer the charge made against them in Clark County, Kansas. During the hearing of this application, the attorneys for the petitioners and the respondent agreed that seven hundred dollars was an adequate amount of bail, for each of the petitioners, and an order has already been made, pending this hearing, fixing the amount of bail to be required of each petitioner at said sum of seven hundred dollars.

It is therefore ordered that the petitioners, Charles Hess and Reuben Orr, be, and they each are, hereby remanded to the custody of the respondent, Geo. M. Grimes, Sheriff of Clark County, Kansas, to be held by him under the terms of the commitment now in his hands. It is further ordered that the said Charles Hess and Reuben Orr, or either of them, may be released from the custody of said Sheriff upon executing and delivering to said Sheriff a good and sufficient bond in the sum of seven hundred dollars for each petitioner, conditioned that they will appear on the first day of the next term of the District Court of Clark County, Kansas, to answer the charges alleged against them, and not depart the same without leave of the court first obtained.