*1 County Foster, Appellant, v. Uttech, ex rel. State Sheriff, Respondent. July
June 1966. *4 appellant For the there were briefs Grootemaat, Franke, attorneys, Cook & and Francis R. Croak and counsel, David J. Rase of Milwaukee, all of and oral argument by Mr. Hase and Mr. Croak. respondent
For the argued cause was Donald Johns, attorney general, assistant with whom on the brief were Bronson Follette, attorney C. La general, and Wil- Platz, liam A. attorney general. assistant presented J. The issue Hallows, is whether Foster legally governor’s detained warrant which enjoys prima presumption legality. pre- More facie cisely stated, testing can this court in the legality of the corpus arrest in a habeas proceeding go behind the governor’s rendition warrant and examine the affidavit and warrant and other documents issued in Indiana *5 they meet re- to determine whether constitutional purposes quirements for extradition and arrest purpose ? for such statutes of Wisconsin IV, The the United in art. constitution of States sec. charged provides, person any treason, “A state with felony, justice, other from crime, or who shall flee and state, shall, be found in another on demand of the authority fled, executive of state from he which having up, be delivered to be removed to the state jurisdiction require- of the crime.” constitutional This legislation implemented by ment provide was federal procedure demanding USCA, for the extradition. 18 provides sec. 8182. This section whenever authority person a executive of state demands a as a fugitive justice produces copy from and a an of in- found, magis- dictment or of an affidavit made before a charging person having trate demanded with authentic, committed the crime certified as the executive authority state which the has fled will agent him to be cause and to arrested be delivered to the demanding state. Many states, however, including Wisconsin and Indi- ana, have enacted the Uniform Criminal Extradition legislation ancillary Act as to and aid of the federal 964.02, constitution and statute. Stats., of this act, duty governor of up of state to deliver fugitive justice a demanding from made state is subject qualifications chapter, pro- visions of constitution of States, the United and the Congress. provided acts of In sec. 964.03 it is that no recognized demand for extradition shall be it is in unless writing showing present demanding the accused was in a alleged state at the time of the crime and that he fled state, accompanied by from that copy a either found, the indictment supported by, or an information copy an affidavit or of an affidavit before made magistrate there, together copy any with a *6 indictment, The information which was issued thereon.1 magistrate or made before the must substantial- affidavit having ly charge person the committed a demanded with crime the authenticated under of that state and be law making authority the executive the demand. governor may investigate provides
The further the act case, Stats., 964.04, the and if he decides the demand sec. sign complied should of be with shall his warrant arrest substantially which warrant recite must the facts neces- sary validity issuance, However, to the of its sec. 964.07. governor’s person may no the arrested warrant demanding agent be to delivered the state unless judge he is first taken before a of a court forthwith of state, record in this inform who him demand shall made for of his surrender and the crime with he which charged right procure is and that he to has demand and legal prisoner counsel and if or the his counsel shall they legality arrest, state he or desire to the test of his judge of court of record fix such shall a reasonable time apply within to to which allow him for a writ of habeas corpus. Sec. 964.10. goes
It guilt is clear that evidence which or may inquired innocence not into, accused be either governor any proceeding or after the demand for charge legal if a extradition a crime of form has been presented governor except to the as such issue is in- directly involved in the identification of the charged crime, held as the one 964.20, with Stats. While evidence in trial court was taken in probable this case police as what cause the officer had swearing to the affidavit on which the warrant was issued, do type not goes we think this of evidence guilt or innocence because issue not is decided. goes validity Such evidence to the of the warrant. Kojis (1953), v. Barczak 264 Wis. (2d) N. W. copy required by of The not statute, the federal USCA, sec. 3182. Krueger and in State ex rel. v. Michalski (2d) 644, probably Wis. 85 N. W. this court took a may limited and evidence be narrow view what go governor’s warrant, admitted to behind the but we do scope in this case reach the evidence because Indiana on their documents face are insufficient to sus- tain governor. the rendition warrant of corpus proceeding
We think court habeas this may examine questions affecting into constitutional legality of the arrest this state for extradition at least where constitutional standards are shown not to have complied been with on the face of the If documents. solely court questions was restricted identity, *7 fugitive status, of and of whether an extraditable crime charged, very is there purpose would be little providing in statutory right a corpus to a legality habeas “to the test legality of his arrest.” The governor’s of arrest on the only prima warrant at most is valid. In re Cohen facie (1952), Super. 209, 23 (2d) 837, N. J. 92 affirmed, Atl. 362, 12 (2d) N. J. 96 Atl. 794. Not to examine the suf- ficiency of the foundation on documents direct attack as corpus a proceeding in habeas make presump- would the tion any conclusive. there purpose Nor is requiring in copies of the information or affidavit and warrant if they are not to be examined to if see the demand or requisition proper and can serve aas valid basis governor’s rendition warrant.
In a recent Limberg case of v. (Minn. State 1966), 142 (2d) 563, N. W. the Minnesota court under a statute simi- 964.03, Stats., lar to sec. underlying examined the affi- davit Michigan. and warrant of the state discussing of In point the involving additional whether the accused was Michigan in at the time of extradition, the the court asked, presumptive the “Is effect of the rendition warrant supported by when accompanying affidavits the demand for extradition sufficient repel itself to positive the testimony appellant that he present was not in the
demanding it ?” The court held it and was was state demanding upon present state to some incumbent testimony positive In declaration. to contradict Kojis copy and examined the this court affidavit upon requisition warrant made and which which was governor’s order furnished the basis for warrant they complied 964.03, in to determine whether with charging having substantially with committed a crime in North and Carolina this view governor certification of North Carolina that charged a In ex affidavit and warrant rel. crime. State Hanley 374, (1947), (2d) 373, v.Wells N. Wis. 27 W. court, inquire corpus while it refused to habeas on legality imprisonment into of an Alabama because corpus it, issue on habeas was not before stated purpose corpus inquire habeas towas into the de- fugitive tention under the issued in this state. Capelle rel. (1962), See State ex Keehn v. (2d) 17 Wis. 487; (2d) (1964), N. also v. Klein W. State (2d) 394, (2d) 816, denied, Wis. 130 N. W. certiorari Sup. 380 U. S. Ct. 1083. Simpson State ex rel. v. White (2d) 28 Wis.
590, 137 N. W. we determined the constitutional guaranties interpreted by as supreme the United States required court warrants of arrests to be issued in magistrates dependent showing probable cause. We stated: *8 “As a of result the supreme United cases, States court constitutionally it mindful thorizes not magistrate essential that the be underlying of the circumstances before he au- magistrate issuance of á may warrant. The accept question suspicions without or conclusions complainant but, of contrary, a on the must determine the probable of being apprised existence cause after performing relevant function, facts. magis- officer this or
trate court judicial commissioner serves as a and must act in a neutral and detached manner. He adequate must question: an hypothetical receive to answer you ‘What makes think that defendant
673 charged?’ committed the offense v. Jaben United States 214, 224, Sup. 381 U. S. Ct. L. Ed. (2d) 345.” proceedings The Indiana do' not meet this standard. by Dabner, The record of: An affidavit consists James Y. police officer, justice a to before a of subscribed peace county of Marion Dabner oath swore on which day December, 1962, that Isaac Foster on the 7th of county, Indiana, Marion robbed Gabe Cohen Richard Riding $2,000; a warrant of for arrest Isaac Foster signed robbery by answer the affidavit Edwin McClure, clerk of the criminal court of Marion county by Schulmeyer; a Constance a certification that proceedings these two documents constituted the on had September 23, 1964, Rabb, before Honorable I. Saul judge county signed of the criminal court of Marion clerk McClure; Rabb, Edwin a certificate I. Saul presiding judge, the attestation and certificate of McClure are due form of law and McClure was clerk; and a certification of McClure that Saul I. Rabb presiding judge was the of the court. These documents accompanied by request were prosecuting at- torney governor to the requisition of Indiana for his Upon have Foster extradited. these documents governor of requisition governor Indiana issued his of Wisconsin. Nowhere in appear these documents does it by magistrate the issuance of the warrant was or on probable True, charges cause. the affidavit a crime but it requirements does meet the constitutional Simpson, supra. v. White far shows, So as the record deputy accepted clerk this insufficient affidavit without probable a determination of cause and issued the warrant. duty governor The alleged this state to have an Assembly note in legislature We Bill No. introduced in the 964.02, Stats., last month that require is amended to the com plaint magistrate sign be made before a who shall the warrant of arrest.
674 fugitive up subject pro- and arrested delivered to the is visions the constitution of the United States. Sec. 964.02, Stats. 328.01, Stats.,
Under sec. required court this to judicial take notice of the statutes sister states. We note that Indiana a has Uniform Criminal Extradition special
Act pertaining and besides has a act to warrants fugitives of arrest of from 4 Burns, Indiana. See Indiana Anno, (part 1), [2071], Statutes p. 9-418 sec. 18. This requires section fugitive the for the warrant arrest of a by judge shall be circuit, issued superior, of the city criminal justice or court peace or the before whom the present affidavit is filed. The record shows the affidavit justice was made a peace before issued, by justice and a warrant peace but deputy The applicable clerk. Indiana statute general arrest, 9-1001, warrants of pro- which is sec. : vides warrant of arrest immediately a If no order is all indictments and charging him subsection court or a indictment “Issuance of filing of such judge is found or an (b) made, with thereof [of] warrant or summons.— indictments affidavits within ten the clerk shall issue warrants shall, commission of an affidavit filed act, subject direct affidavits.” returnable forthwith. the clerk to issue against [10] (a) provisions offense, days When after an
There is judge no order in the directing record of the immediately clerk issue the warrant nor is there any any proceeding record of judge, before the much less probable 964.03, cause was determined. Our sec. Stats., require seems to to be issued magistrate before whom the affidavit is made. In Ex parte Rubens 101, Ariz. 238 Pac. denied,
certiorari 840, Sup. 50, U. S. Ct. 97 L. Ed. interpreted act, court USCA, the federal require making of the affidavit before the magistrate who issues the warrant. *10 think the Indiana are
We on this record that documents defective and insufficient to sustain Wisconsin governor’s Hattaway (Fla. v. Culbreath warrant. 1952), (2d) 661, held that from it documents So. was comply Alabama for not extradition did with sec. statutes, 941.03 of the to our Florida which is similar 964.03, governor’s support sec. and were to insufficient rendition warrant and therefore the issuance illegal parte (1955), In Ex warrant was and void. Harck Rep. 602, (2d) Tex. it held Crim. was S. W. the Arizona meet the documents extradition did not Act, Texas Criminal Uniform Extradition art. 1008a, substantially 964.03, which is the same as our sec. and that presumption fact overcome was sufficient to legality sufficiency and of the rendition warrant governor.
In some prevailed of the older cases the attitude in has extradition cases that the defects in the are demand questions demanding raised in the be after the state accused returned. justice is think there We is no in saying to a in subject Wisconsin to our laws protection and entitled rights, may to the of his that he may legality be extradited but contest of his extra- post just dition ex put Nor is it the accused to facto. expense, jeopardy inconvenience and involved in a demanding defense in the preliminary state when this prerequisite to extradition be can determined here. Per- haps characterizing we went far too the extradition process satisfying purposes as preliminary of a hear- ing as we did in Johns v. State 14 Wis. (2d) And, fugitive N. W. 490. while is not entitled asylum sense, the international he is entitled to
lawful arrest.
It pointed governor’s should also be out re- warrant only fers as its basis to the affidavit made before the magistrate requires and delivery also agent only giving Indiana after Foster a reasonable time to advise with friends and counsel. This form of warrant Stats., comply 964.07, conflict and
does with sec. is however, opinion, with secs. 964.03 and 964.10. Our imperfections. not based such hold then the trial court in error in not examin- We was ing legality into of Foster’s detention under governor’s requisition and since the Indiana requirements 964.03, documents do not meet the of sec. Stats., standards, or of constitutional the rendition war- unlawfully rant was entitled to issued Foster is his discharge.
By appealed reversed, Court. —The order from is discharge custody with direction to Foster from the *11 Dodge County. the sheriff of (dissenting). respectfully I J. Gordon, must dissent. position explore This court is not in a fair the debat alleged able unconstitutionality facts involved in the the Indiana warrant of There arrest. is indeed doubt proceedings proper, whether Indiana were but such courts, doubt should be resolved in the Indiana not in supreme proceedings Wisconsin court. Their are prima valid, and since the claimed defect is not facie entirely clear from the documents, face of the we should purport question. Krueger resolve this ex State rel. (1957), v. (2d) 644, Michalski (2d) 339; Wis. 85 N. W. Kojis v. Barczak (2d) Wis. N. W. 420. tardy
As requirements conformists of the United recognized by States constitution inus ex rel. State White Simpson (1965), v. 28 Wis. (2d) 137 N. W. particularly we should be reluctant to assume that a recognize sister light state still fails to which we so recently observed.
I am authorized to state that Mr. Chief Justice Currie joins in this dissent.