321 Mass. 206 | Mass. | 1947
These two petitions for writs of habeas corpus are substantially identical. In each the petitioner seeks his release from the custody of two officers of the State
It is assumed in favor of the petitioners that the cases properly may be brought here by exceptions. Harris, petitioner, 309 Mass. 180, 184. Baker, petitioner, 310 Mass. 724, 727.
1. We first consider questions relating to the report of the Attorney General.
(a) Pursuant to G. L. (Ter. Ed.) c. 276, § 15, as appearing in St. 1937, c. 304, § 1,
(b) The eleventh request of each petitioner was) "That the Governor having referred the petition to the Attorney General of Massachusetts in accordance with the provision of § 15 of c. 276 of the General Laws, the Governor is bound to follow the advice and report of the Attorney General.” It is the Governor upon whom rests the statutory duty of determining whether a requisition shall be complied with. G. L. (Ter. Ed.) c. 276, § 12, as appearing in St. 1937, c. 304, § 1. U. S. Rev. Sts. § 5278 (U. S. C. [1940 ed.] Title 18, § 662). Germain, petitioner, 258 Mass. 289, 293. The eleventh request stated an antithesis of the statutory requirement, and its denial was right.
2. There was no constitutional right in the petitioners to demand a hearing before the Governor, who committed no error in refusing to grant one. Munsey v. Clough, 196 U. S. 364, 372. Pettibone v. Nichols, 203 U. S. 192, 204. People v. Pease, 207 U. S. 100, 109. Reed v. United States, 224 Fed. 378, 380-381 (C. C. A. 9). Raftery v. Bligh, 55 Fed. (2d) 189, 193 (C. C. A. 1). Lee Won Sing v. Cottone, 123 Fed. (2d) 169, 173-174 (C. A. D. C.). The thirteenth request of each petitioner was rightly denied.
3. The judge denied the following requests of each petitioner: “5. That upon all the evidence, he is not a fugitive from justice from the State of Maine, and is entitled to his discharge. 6. Upon all the evidence, the petitioner was not in the State of Maine on or about the 3rd day of June, 1946, and the writ of habeas corpus issue, and that he be ordered discharged thereon.”
Each requisition of the Governor of Maine stated that
It is well settled that "the court will not discharge a defendant arrested under the governor’s warrant [in extradition proceedings] where there is merely contradictory evidence on the subject of presence in or absence from the State, as habeas corpus is not the proper proceeding to try the question of alibi, or any question as to the guilt or innocence of the accused.” Munsey v. Clough, 196 U. S. 364, 375. Germain, petitioner, 258 Mass. 289, 296-297. Harris, petitioner, 309 Mass, 180, 184. Baker, petitioner, 310 Mass. 724, 732-733. G. L. (Ter. Ed.) c. 276, § 20H, as inserted by St. 1937, c. 304, § 1. And it is undoubtedly true that whether the petitioners were fugitives from justice was a question of fact for the Governor to determine upon evidence satisfactory to him. Roberts v. Reilly, 116 U. S. 80, 95. Hyatt v. People, 188 U. S. 691, 710. Munsey v. Clough, 196 U. S. 364, 372. Hogan v. O’Neill, 255 U. S. 52, 56. Strict common law evidence was not necessary before the Governor or before the court reviewing his decision. Germain, petitioner, 258 Mass. 289, 295.
The petitioners contend that, even if the testimony of the petitioner Murphy and of the two other witnesses was
4. We next consider requests of the petitioners which challenge the sufficiency of the papers accompanying the requisitions of the Governor of Maine.
(a) Two requests
(b) Two requests
An affidavit is a statement in writing sworn before an officer authorized to administer an oath. Ingraham v. United States, 155 U. S. 434, 437. Amtorg Trading Corp. v. United States, 71 Fed. (2d) 524, 530 (Ct. Customs & Patent App.). People v. Meyering, 356 Ill. 210, 214. People v. Wyatt, 186 N. Y. 383, 389. Matter of Breidt, 84 N. J. Eq. 222, 226. Fitzsimmons v. Board of Education of Carteret, 125 N. J. L. 15, 18.
The oath to the complaint, as has been noted, was before the clerk of the Municipal Court for the City of Lewiston. It was dated June 28, 1946, the same day as the warrant. The concluding part of the warrant was, “Witness, Adrian A. Cote, Esq., Judge of our said Court at Lewiston aforesaid, this twenty-eighth day of June in the year of our Lord one thousand nine hundred and forty-six. Harris M. Isaac-son, Clerk.” This appears to have been issued in accordance with Rev. Sts. Maine (1944) c. 133, § 12.
By the laws of Maine it is provided: “The signature of the recorder or clerk of any municipal court to a complaint, warrant, mittimus, writ, or other document, purporting to come from the court of which he is recorder or clerk, shall be sufficient evidence of his authority to issue the same, without in any way accounting for the absence or presence of the judge of said court.” Rev. Sts. Maine (1944) c. 96, § 6. “Clerks of courts may administer oaths required by law unless another officer is specially required to do it.” Rev. Sts. Maine (1944) c. 79, § 118.
Upon the facts presented it is to be presumed that the oath to the complaint was taken in the court, and hence was before the judge, who is a magistrate within the meaning of U. S. Rev. Sts. § 5278 (U. S. C. [1940 ed.] Title 18, § 662), and G. L. (Ter. Ed.) c. 276, § 14, as appearing in St. 1937, c. 304, § 1. See Ex parte Reggel, 114 U. S. 642, 652-653.
As the complaint was "an affidavit made before a magistrate” in accordance with U. S. Rev. Sts. § 5278 (U. S. C. [1940 ed.] Title 18, § 662), and G. L. (Ter. Ed.) c. 276, § 14, as appearing in St. 1937, c. 304, § 1, the papers were regular upon their face without regard to the affidavit of the county attorney. It is unnecessary to consider further requests numbered 9 and 10, as their denial could' not harm the petitioners.
5. The only remaining request argued by the petitioners is the fourteenth,
We need not discuss other requests which have not been argued but which raise no new question.
6. The suggestion of the Attorney General, which was made at the arguments in this court and is not a part of the record, that subsequent to the events described in the record the petitioner Pray has been convicted of another crime in
The exceptions are overruled. The record showing that the petitioners have been admitted to bail, the entry in each case will be that the petitioner be remanded to custody under the warrant of the Governor. Graves’s Case, 236 Mass. 493, 499. Baker, petitioner, 310 Mass. 724, 733.
So ordered.
"When a demand shall be made upon the governor by the executive authority of another state for the surrender of a person so charged with crime, the governor may call upon the attorney general or any other prosecuting officer to investigate or assist in investigating the demand, and to report to him the situation and circumstances of the person so demanded, and whether he ought to be surrendered.”
“7. That the requisition of the Governor of Maine was not accompanied by, ‘A copy of an indictment found or of an information supported by affidavit,’ and, therefore, the Governor of Massachusetts had no right or duty under § 14 of c. 276 of the General Laws to sign a warrant authorizing the removal of your petitioner to the State of Maine, and order the writ to issue and direct the discharge of the petitioner thereon.
“8. An affidavit is not sufficient from which a Governor may base his warrant unless it is accompanied by an information, and, therefore, the warrant of the Governor of Massachusetts is not justified under the act, and order the petitioner’s discharge.”
“Whenever the executive authority of any State . . . demands any person as a fugitive from justice, of the executive authority of any State ... to which such person has fled, and produces a copy of an indictment found or an affidavit made before a magistrate of any State . . . charging the person demanded with having committed treason, felony, or other crime, certified as authentic by the governor ... of the State . . . from whence the person so charged has fled, it shall be the duty of the executive authority of the State ... to which such person has fled to cause him to be arrested and secured, and to cause notice of the arrest to be given to the executive authority making such demand, or to the agent of such authority appointed to receive the fugitive, and to cause the fugitive to be delivered to such agent when he shall appear.”
“No demand for the interstate rendition of a person charged with crime in another state shall be recognized by the governor unless it be in writing alleging . . . that the person demanded was present in the demanding state at the time of the commission of the alleged crime . . . nor unless such demand is accompanied by a copy of an indictment found, or of an information supported by affidavit, in the demanding state, or by a copy of an affidavit made before a magistrate of such state, and by a copy of the warrant which was issued thereon .... The indictment or information, or the affidavit made before the magistrate who issued the warrant, shall substantially charge the person demanded with having committed a crime under the law of the demanding state, and the copy of the indictment, information, affidavit . . . shall be authenticated by the executive authority of such state.”
“9. That the affidavit signed by A. F. Martin, district attorney, is not sufficient in law, because it does not contain evidence which would be admissible at the trial of your petitioner; that the affidavit upon information and belief does not comply with the requirements of law under § 14 of c. 276.
“ 10. That the requisition of the Governor of the State of Maine does not S’y with § 662 of Title 18 of the Criminal Code of the United States provides for production of a copy of an ‘indictment found or by an affidavit made before a magistrate’; that the affidavit of A. F. Martin, county attorney, is not made upon his own knowledge, but upon information and belief, and is not made before a magistrate, but before a notary public. The provisions of the Federal statute not having been complied with, the Governor of Massachusetts had no right to issue bis warrant; that the arrest and detention of the petitioner thereon is an unlawful restraint of his liberty; that he should, therefore, be discharged upon the writ of habeas corpus.”
“ 14. That the provisions of the Massachusetts Statute under Section 13 to the effect that the Petitioner need not be in the demanding state at the time of the commission of the crime is unconstitutional and in violation of Article IV, Section 2 of the Constitution of the United States.”