109 Misc. 328 | N.Y. Sup. Ct. | 1919
This is a habeas corpus proceeding in which the relator, Plumley, asks for his discharge from custody under an extradition warrant issued on the request of the governor of New Jersey for the return to that state of the relator to answer an indictment there charging him with the desertion of his wife in New Jersey. The facts set forth in the papers, and adduced on the hearing, are undisputed.
Plumley is twenty-six years of age, and resides in and has at all times been a bona fide resident .of the state of New York, having always lived with his parents, and for a number of years last past at Buffalo. He served with the United States army both in this country and in France during the recent war; and on April 5, 1919, married a young woman in Camden, N. J., after having spent but a few days there prior to the wedding. Immediateky after the marriage relator brought his wife to Buffalo, where they took up their
Before leaving Buffalo the relator had process and papers served upon the wife, personally, within the state of New York, in a civil action which he instituted for the annulment of the marriage on the grounds of fraud and physical incapacity. No defense was interposed, and an interlocutory judgment annulling the marriage was entered July 10,1919, upon which under the practice in this state a final judgment could be and was entered three months thereafter to like effect October 14, 1919. Both the interlocutory and the final judgments provided and decreed in express terms that the marriage was null and void from the date of its inception.
On October 15, 1919, the d-av after the final judgment of annulment had become operative and effective, the grand jury of Camden county, N. J., returned an indictment against relator charging him with having deserted his wife at Camden on April 14, 1919, and unlawfully refusing and neglecting to provide for and maintain her. The indictment does not allege
The questions presented on habeas corpus in a case of this type are as to the identity of the alleged fugitive, whether the crime was committed in the foreign state under its laws, whether the indictment or information charges a crime under such foreign laws, and whether the person apprehended is within the fair and legal sense of the term, a fugitive from justice. Moore Extradition, 887; People ex rel. Genna v. McLaughlin, 145 App. Div. 521; People ex rel. Lawrence v. Brady, 56 N. Y. 182; Munsey v. Clough, 196 U. S. 364; McNichols v. Pease, 207 id. 109. These authorities also hold that evidence may be taken in such a proceeding to aid the court in determining the facts bearing upon the legal questions involved, and that the questions sometimes become mixed questions of fact and law.
I have reached the conclusion that the relator is immune from extradition on each of the last men- , tioned three grounds, his identity not being questioned.
In the first place, it is perfectly clear that Plumley was never a resident of, nor did he ever have a domicile in New Jersey, nor did he have any intention of being, becoming or remaining such resident of that state. His presence there on the occasion of his marriage, and for a few minutes a few days after his marriage, when he took his wife to Camden at her request, were obviously temporary, and afforded no grounds for regarding him as a resident. Under these circumstances it seems to me that it cannot be held that the defendant did desert his wife in New J ersey.
Furthermore, it cannot fairly be said that relator was the husband of the woman he married, at least, so as to impose upon him an obligation for her support either at the time he took her to Camden on his return from Buffalo, or at the time the indictment was found. Before he left the state of New York with his wife for Camden relator had instituted an action for the annulment of the marriage on grounds existing at the time thereof, and he subsequently was granted an interlocutory and a final judgment of annulment. These judgments, as already appears, specifically declare the marriage void from its inception. I appreciate that section 7 of the Domestic Relations Law of the state of New York provides that such a marriage as the present one is void from the time that its nullity is
The prosecuting authorities and the courts of Camden county will doubtless be disposed to dismiss the indictment on learning of the final judgment of annulment rendered by the Supreme Court of the state of New York, the day before the indictment was filed.
Like considerations and reasoning lead to the conclusion that the indictment, which is somewhat indefinite, does not set forth facts or acts constituting the crime of desertion under the statutes upon which it is based, of the state of New Jersey, and if this be so, it is the duty of the courts here to refuse extradition, or, what is the same thing, to hold it unlawful under the circumstances of this case. The indictment does not allege that the relator, or his wife, were residents of New Jersey, or that either ever had a domicile there, or that relator was actually in New Jersey at the time of the alleged desertion. The allegations of the indictment on these vital points are extremely guarded. The only recital of the indictment on these points is that Plumley is or was “ late of the City of Camden in said .County of Camden.” This certainly does not allege the residence of Plumley at the time of the alleged commission of the crime of desertion, or at any time, to have been, or to be in Camden, or in the state of New Jersey. In view of the somewhat unusual situation presented by the undisputed facts in this case, it seems to me that the indictment is defective in making no reference to the residence or domicile of Plumley, but merely stating that he was “ late of the City of Camden,” an allegation which, when challenged, is not the equivalent of a statement of residence, and certainly not of residence at any particular time, or at the time when, in the indictment, relator deserted or it is asserted that he deserted his wife.
While I appreciate that equitable or personal meritorious considerations cannot govern or control the disposition of a legal question such as is here presented, it is, nevertheless, gratifying to note that justice, as well as the law, will be subserved in this case by a refusal to extradite the relator, and to subject him to financial loss, expense and annoyance involved in establishing his defense in the courts of New Jersey, far distant from his home, and in proving there the adjudicated wrong which has confessedly been done him by the woman whom he married, and by her parents. Plumley served his country faithfully and courageously in active service at the front, and won honors and decorations for bravery and meritorious conduct, for which his unfortunate matrimonial venture should not unnecessarily harass him. I am satisfied on the legal principles and considerations applicable to the case, and upon which my decision, alone, is based, that the writ of habeas corpus should be sustained, and the relator discharged from custody, and an order to that effect may be entered.
' Ordered accordingly.