State v. PhillipsState v. Phillips
The Bergen County Court ordered extradition of the defendant to the State of Michigan and simultaneously denied his application for a writ of habeas corpus. Defendant appealed from each of said orders. The appeals have been consolidated.
The demand issued by the Governor of Michigan to the Governor of New Jersey recited that the defendant stood charged with the “crime of Conspiracy to Cheat and Defraud: Conspiracy to Violate [the] False Advertising Statute: and False Advertising,” contrary to the laws of Michigan, and sought Phillip‘s extradition to that state. Annexed to it was a copy of a complaint which charged that Harold Phillips and others “on the 1st day of December, A.D. 1958 and on divers other days and dates up to and including the 4th
The conspiratorial scheme alleged by the complaint was that the defendant Harold Phillips and others operating through a Michigan corporation, Floor Magic of Michigan, Inc. (hereinafter referred to as “Floor Magic“) solicited prospective salesmen by advertisements placed in the Detroit Times and the Detroit Free Press, and in so doing made certain representations which were false in that they failed to apprise the prospective employees that an investment would be required of them. In addition to the general charge it was specifically alleged that one Andrew L. Percy, a prospective employee, was misled by an advertisement appearing in the Detroit Times of January 6, 1959, fraudulently placed therein by Harold Phillips and Floor Magic.
Also contained in the application for requisition were an information presented by the prosecuting attorney of Wayne County, Michigan, which alleged violations identical with those contained in the complaint, and affidavits of Andrew L. Percy, Soulby R. Haymour and Samuel H. Olsen, the prosecuting attorney. Percy in his affidavit, insofar as it is relevant here, alleged that after reading Floor Magic‘s advertisement of January 6, 1959 in the Detroit Times he applied for employment and, as part of the hiring procedure, was interviewed by Harold Phillips on January 16, 1959, and at that time signed what he thought to be a franchise but which was in fact a contract whereby he, unknowingly, became obligated to Floor Magic in the sum
Defendant offered no proof either at the hearing or by affidavit that he was not within Michigan during the period December 1, 1958 to May 4, 1959. His sole argument was that since the only specific dates alleged in the complaint and information are December 1, 1958, January 6, 1959 and May 4, 1959, the burden rested upon Michigan to prove his presence within that state on one of these dates, and having failed to do so his fugitivity was not established and he is not the subject of rendition. This contention is the basis of the appeal.
Extradition is a federal matter, the basic authority for which is contained in
It is open to a defendant to show that he was not present within the demanding state when any of the essential acts of setting the crime in motion transpired. 4 Anderson, Wharton‘s Criminal Law & Procedure, § 1669, p. 387 (1957); United States ex rel. Miller v. Walsh, 90 F. Supp. 332 (D.C.N.D. Ill. 1949), affirmed 182 F.2d 264 (7 Cir. 1950). Absent such showing, the demanding authority‘s warrant is presumptive evidence of presence, State ex rel. Ross v. Owens, 187 Minn. 244, 244 N.W. 820 (Sup. Ct. 1932), and it devolves upon the accused to carry the burden of proving by clear and convincing proof that he was in fact absent. State of South Carolina v. Bailey, 289 U.S. 412, 53 S.Ct. 667, 77 L.Ed. 1292 (1933); People ex rel. Lejcar v. Meyering, 345 Ill. 449, 178 N.E. 80 (Sup. Ct. 1931); State ex rel. Ross v. Owens, supra.
The asylum state is without authority to adjudge the technical sufficiency of the indictment, this being exclusively within the domain of the demanding state. Ex parte Rubens, 73 Ariz. 101, 238 P.2d 402 (Sup. Ct. 1951), rehearing denied (1952), certiorari denied, Rubens v. Boies, 344 U.S. 840, 73 S.Ct. 50, 97 L.Ed. 653 (1952).
Defendant, while conceding that generally a variance between proof offered at trial and the date of the offense as charged in the indictment does not preclude conviction thereon, asserts that in an extradition proceeding such a variance is fatal since proof of presence in the demanding state on the date of the offense as alleged is jurisdictional and thus is indispensable to rendition. See Hyatt v. People of State of New York ex rel. Corkran, supra, 188 U.S., at p. 711, 23 S.Ct., at page 458, 47 L.Ed., at p. 661;
The precise point was disposed of in Ex parte Montgomery, 244 F. 967 (D.C.S.D.N.Y. 1917), affirmed per curiam, 246 U.S. 656, 38 S.Ct. 424, 62 L.Ed. 924 (1918). There the relator had been charged with conspiring “on the 1st day of March” 1917 and “at other times before and after said date, and within two years of the day of the taking of this inquisition” to cheat and defraud. The proof developed during the application for a writ of habeas corpus showed that the relator had never been in the county in which the alleged crime took place but had travelled through a remote part of the state on an interstate train with a co-conspirator on February 17, 1917. The court, in ordering that the relator be delivered up for rendition, dismissed the same argument as is here advanced by defendant Phillips, and said:
“While the indictment here mentions specially but a single day, it also alleges a conspiracy claimed to have been hatched during two years preceding the indictment. Conspiracy is a continuando [sic]
crime, and the rule is now well settled that the demanding state is not bound either upon the trial or in the extradition proceedings by the specific date laid. While the relator was not in the locus in quo during the period it is alleged the crime was committed, he was within the demanding state and in the presence of a coconspirator on an interstate train. The circumstances of the relator‘s presence in the demanding state during this period do not establish the impossibility of his participation in the conspiracy. The crime charged did not require his presence in the locus in quo. A conspiracy may be a continuing offense. Indeed, it has been held to be a purely continuous offense.” 244 F., at p. 970.
Since the rendition papers presented to the trial court constituted prima facie evidence that defendant was in the demanding jurisdiction during the period of the conspiracy, the failure of the defendant to offer contradictory proof left the court with no alternative but to comply with the demand for rendition. Passalaqua v. Biehler, supra.
The orders of the Bergen County Court are affirmed.