4 N.E.2d 373 | Ill. | 1936
This is an appeal from a judgment of the circuit court of Randolph county quashing a writ of habeas corpus. The petition for the writ was filed on the relation of Herbert Buxton pursuant to section 2 of the act relating to fugitives from justice, which provides that one arrested as a fugitive from justice may, for any one or more of five different specified causes, have a writ of habeas corpus upon filing an affidavit alleging the cause. Two of such grounds are: "That the requisition and papers are not in regular and legal form," and that the petitioner "is not a fugitive from the justice of the demanding State, i. e., that he was not physically present in the demanding State on or about the date upon which the offense with which he is charged, is alleged to have been committed." (State Bar Stat. 1935, p. 1714.) Both of these grounds were asserted in the application for the writ of habeas corpus and are relied upon for a reversal of the judgment.
The sheriff of Randolph county made a return to the writ, stating that he held Buxton in his custody upon an *276 extradition warrant and papers attached thereto, issued by the Governor of California and honored by the Governor of this State. The Governor's warrant and extradition papers were attached to the return. Prior to the commencement of the trial, on January 29 or 30, 1936, the relator made a motion to strike the return filed by the sheriff because it was not in regular form, and upon the denial of that motion moved to strike from the return the affidavits attached and the application for the requisition because they were not properly authenticated and certified. This motion was also denied. Upon quashing the writ the court ordered the relator remanded to the Randolph county jail, there to be delivered to the agent of the State of California for transportation to that State.
The sufficiency of the affidavits attached to the application for requisition, and their competency as evidence, are questioned. The United States statutes provide (
A complaint made on April 25, 1935, by H.L. Evans and sworn to by him before Wm. Frederickson, a judge of the municipal court of the city of Los Angeles, charged *277
Herbert Buxton, alias Earl Clark, alias H. Clark and John Doe, with the crime of robbery, alleged to have been committed in Los Angeles county, California, on or about January 9, 1935. There was a certification by L.E. Lampton, the county clerk of Los Angeles county, that Wm. Frederickson was a duly elected, qualified and acting judge of the municipal court of the city of Los Angeles. There was also a certification by a judge of the superior court of Los Angeles county that L.E. Lampton is the county clerk of Los Angeles county. The warrant of the Governor of this State recited that there was produced before him a copy of a complaint, warrant, affidavit and certificates, certified as authentic by the Governor of California, charging Buxton with the commission of the crime of robbery at the time and place mentioned, which offense the Governor of California certified to be a crime by the laws of that State. It is sufficient to justify the retention of the prisoner that the sheriff's return show only the Governor's warrant, if it certifies to sufficient facts in regard to the crime. (People v. Meyering,
The three affidavits may not have been admissible as evidence on the trial in the habeas corpus proceeding, (People v.Meyering,
It is argued that the competent evidence shows that the relator was not in the demanding State on the date upon which the offense with which he was charged was alleged *279 to have been committed. The date stated in the sworn complaint before the judge of the municipal court of California, and also stated in the application for the requisition, is, "on or about" January 9, 1935. The warrant issued by the Governor of this State sets forth the particular date without the use of the words "or about." Buxton testified that for the ten months immediately previous to the trial in the habeas corpus proceeding, which was on January 29 or 30, 1936, he was confined in the penitentiary at Menard and was not in California any time during January or February, 1935, and that he never used any other name than Herbert Buxton.
T.R. Thompson, a detective lieutenant of the city of Los Angeles, who was the agent of the State of California to return Buxton to that State, testified that he saw Buxton, whom he knew as H. Clark, at an apartment building in the city of San Pedro, a division of the city of Los Angeles, a week, ten days or two weeks prior to January 9, 1935; that Buxton drove in an automobile to the apartment building with a woman whom the witness did not know; that he saw the same woman three or four days after the alleged robbery and talked with her. He testified that about that time an associate police officer in California gave him a photograph which he recognized as one of Buxton. The witness testified that when he saw Buxton in Chester he showed him the photograph and asked him if he recognized it, to which Buxton made no reply. The witness then remarked that it was a "pretty fair likeness" of Buxton, and the latter admitted that it was a good picture of him but said he did not know when it was taken, and the witness told him that when his "wife ran out she left the picture behind." Upon the trial Buxton testified that the photograph was taken in Quincy, Illinois, but not until about April 4, 5 or 6, 1935.
In a habeas corpus proceeding for the release of an alleged fugitive from justice, arrested on an extradition *280
warrant, the requisition papers, if in good form, and the accompanying affidavits, make a prima facie case that the relator is a fugitive from justice and may be considered as evidence in the case, and it is incumbent on the relator to overcome the prima facie case by competent proof that he is not a fugitive from justice. (People v. Martin,
The judgment of the circuit court of Randolph county remanding the relator to the sheriff was right, and it is affirmed.
Judgment affirmed.