20 A.D.2d 152 | N.Y. App. Div. | 1963
Relator appeals from an order of the County Court of Tioga County which dismissed a writ of habeas corpus issued to test the legality of relator’s arrest and restraint under a warrant issued by the Governor of the State of New York for relator’s extradition pursuant to requisition by the Governor of the State of North Carolina. It is urged in the petition and argued here that the papers upon which the warrant was issued are insufficient in law and, further, do not charge or specify a crime under the laws of North Carolina.
The warrant recites the North Carolina Governor’s representation that relator is a fugitive from justice, charged with having committed in North Carolina “ the crime of attempted rape (escape) ”. Eelator contends that “ attempted rape ” is not a crime under North Carolina law (citing State v. Hewett, 158 N. C. 627, 629 [1912], in which the court said there was no such criminal offense as an “ attempt to commit rape ”, but did hold adequate an indictment charging assault with an “ attempt ”, rather than an “ intent ”, to commit rape). From this it is argued that if the extradition proceedings are predicated on relator’s commission of that act they charge no crime and are insufficient; but that if, as the County Court considered, the proceedings rest upon a charge of escaping from an imprisonment for “ attempted rape ”, the crime of escape cannot be established, absent prior conviction of, and lawful imprisonment for an actual crime.
So far as pertinent to an extradition for a crime of which the fugitive has been convicted, the Uniform Criminal Extradition Act (Code Grim. Pro., §§ 827-859), enacted in our statute, requires that the demand for extradition be accompanied, among other papers, by “ a copy of a judgment of conviction or of a sentence imposed in execution thereof, together with a statement by the executive authority of the demanding state that the person claimed has escaped from confinement or has broken the terms of his bail, probation or parole.” (Code Grim. Pro., § 830.) From the papers which did accompany the demand, it appears that relator was originally arrested upon an information charging assault with intent to commit rape, a crime under the North Carolina statutes (Gen. Stat. of N. C., § 14^22); and that he was indicted for that crime, it being charged that he, ‘ ‘ with force and arms * * * unlawfully, wilfully and feloniously did commit an assault on [a named] female with intent, by force and against her will, to ravish and carnally know
The order should be affirmed, without costs.
Bergan, P. J., Herlihy, Reynolds and Taylor, JJ., concur.
Order affirmed, without costs.