214 S.W.2d 555 | Mo. | 1948
Certiorari to review record in habeas corpus case of Ex parte William Kirk in the Circuit Court of Cole County, in which[556] petitioner was discharged from the custody of Cecil Crosby, agent and messenger from the State of Oklahoma in an extradition proceeding.
The question to be determined in this case is whether an unverified information is sufficient basis for extradition.
Kirk was convicted of robbery in Tulsa County, Oklahoma, in 1931, and sentenced to 35 years imprisonment. In 1945 he escaped from the Oklahoma penitentiary and was later convicted of another crime in Missouri for which he served a two year sentence. Upon his release from the Missouri penitentiary, in 1948, he was arrested on the warrant of the Governor, issued upon an extradition request of the Governor of Oklahoma. [See Sec. 3980, R.S. 1939, Mo. Stat. Ann.] He was discharged on habeas corpus on the ground that the Governor of Oklahoma had not produced a copy of an indictment found or an affidavit made before a magistrate of that state, charging petitioner with having committed a crime, as required by U.S.R.S. 5278, 18 U.S.C.A. 662. The requisition papers do contain an authenticated *347 copy of an unverified information, filed by the County Attorney of Tulsa County in the District Court, charging Kirk with the crime of robbery.
The Attorney General points out that an information is a sufficient substitute for an indictment under the Oklahoma Constitution (Sec. 17, Art. 2) and that there is no requirement for its verification; citing Ex parte Talley, 4 Ok. Cr. 398,
Section 662 (R.S. 5278) provided as follows: "Whenever the executive authority of any State or Territory demands any person as a fugitive from justice, of the executive authority of any State or Territory to which such person has fled, and produces acopy of an indictment found or an affidavit made before amagistrate of any State or Territory, charging the person demanded with having committed treason, felony, or other crime, certified as authentic by the governor or chief magistrate of the State or Territory from whence the person so charged has fled, it shall be the duty of the executive authority of the State or Territory 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." (This provision without change of the italicised words is now part of Section 3182, New Title 18, as revised by the 80th Congress, effective September 1, 1948.) Our Section 3980 provides that the Governor shall issue his warrant upon an extradition request when the executive of any other state "shall have complied with the requisites of the Act of Congress."
The Federal Statute plainly says that the requirement for extradition is either an indictment or an affidavit made before a magistrate charging the commission of a crime; and we have said: "The demanding state must produce one or the other of these two instruments, and without the one or the other the surrendering executive is without authority to issue a rendition warrant." [Ex parte Hagen,
The Attorney General cites Pierce v. Creecy,
Pierce v. Creecy, supra, held that an indictment, whether good or bad as a pleading, was a sufficient charge of crime to support extradition when it unmistakably described every element of the crime of false swearing under the Texas Statute; and that it was only necessary to show that the accused was substantially charged with a crime to support extradition. No question as to an information, verified or unverified, was involved.
The Attorney General has cited one case Ex parte Nash,
It is ordered that our writ of ceriorari be quashed. All concur. *350