*1 675 may judgment every intent, appear, its is void to and for every purpose, by every and must be so declared in court ’ Lowery presented.” Co., v. Ins. Life 100, 102, 153 54 Ind. N. E. 442.” they appear must from the facts as conclude the rec- We argument presented appellant and citation ord and the lacking totally jurisdiction Madison Circuit Court was pending either or the .cause case and that judgment nullity. of conviction obtained therein is a cause should reversed and remanded the Madison Circuit instructions remand same to the Court Hamilton proceedings Circuit Court for further not inconsistent with opinion. DeBruler, J., concurs. Reported N. E. 2d 557.
Note. — Vigo County. Lovellette, v. Sheriff Sumner rehearing April petition 169S23. Filed No [No. filed.] *2 Nasser, Wilson, Nasser, Woodrow S. Jack A. Wilson & Haute, appellant. Terre for
Frederick
Bauer,
Haute,
T.
appellee.
of Terre
brought by
against
appellant
C.J. This action was
Hunter,
appellee
corpus arising
for a writ of habeas
out of the
wrongful
appellant pursuant
restraint and detention of
to ex-
proceedings
tradition
between this state and the
of Ten-
Vigo County Superior
Trial
nessee.
was had before the
Court
appellant
up
Bilyeu,
ordered that
delivered
to Sheriff
agent
Tennessee,
transported
to be
to that state.
Appellant
assignments
sets out various
of error in his mo
argue
tion for new trial some of which he fails to
on this
appeal.
grounds urged
The law is clear that
in a motion
trial,
argument
for new
not discussed in the
section
brief,
deemed
are
waived. Brown
(1969),
v. State
76;
252 Ind.
247 N. E. 2d
(1968),
Short v. State
250 Ind.
*3
459,
The two by argument contentions advanced in appellant’s occurring brief relate to errors at trial. It is fur- argued ther that the decision of the contrary trial court is to papers law the extradition allegedly were deficient under the Uniform Criminal (Ind. Extradition Act Ann. Stat. Repl.]). [1956 §§9-419-448
Looking first to the errors to trial, have occurred at argues appellant highly prejudicial hearsay evidence was objection. allowed to be entered over his specifically More it appellant right is contended that was denied the to confront identifying an and cross-examine witness whose affidavit was complained The affidavit admitted record. of was that appellant Allison who of one Jewell swore that was in Ten- $6,000. and had defrauded her of nessee Additionally she picture swore that she had identified a being of defendant as man who defrauded her picture the same and that such to her statement. attached
678 authority the affidavit of the exclusion
Appellant for cites as merely reaffirm which works and other reference cases right confront general has to that an accused rule against rule him. This is witnesses and cross-examine country’s concepts to and basic this so well established liberty process we need not re and due of ordered Inquiry significance to a habeas an accused. minded of its limited, however, corpus proceeding is pursuant to extradition alleged fugitive identifying as one and the same charged in as the indictment or affidavit accom individual panying requisition: guilt as the crime accused or innocence “The may inquired gov- charged into not be he is any proceeding after demand extradition ernor or charge legal crime in form as above accompanied presented governor, except provided that been shall have identifying may the (emphasis added) held be involved in as person charged with the crime.” (1956 Repl.). Ind. Ann. Stat. §9-438 Burke, Deputy Sheriff, (1958), etc. 238 also, Johnson v.
See 413; Taylor (1938), 1, v. Smith 213 Ind.. 148 N. E. 2d Ind. Thus, relating 2d to the 640, 13 N. E. 954. evidence probable guilt aspects petitioner’s or inno various pre properly on has been excluded .court cence Superintendent, Rouls, Indianapolis v. vious occasions. Gluff Dept. (1950), 176; 91 E. 2d Cook Police Ind. N. v. Rodger, (1939), 215 Ind. 2d N. E. Sheriff therefore, peti- is not issue whether In instant case crime, the state so as to have been commit the could tioner sought the man whether to be extradited is in- but rather arrested under the warrant. man To same consider if deed the been in the state petitioner could or otherwise have available *4 goes alleged crime to the merits of commit the case to on Consequently, to entertain issue of alibi. evidence at a proceeding which tends corpus petitioner’s to establish habeas give at the time of is presence elsewhere offense to him a prior merits to on trial extradition. facto de
679 Keeping corpus in scope of a habeas mind the nature and proceeding extradition, pursuant relative to an arrest to
must also be noted that of evidence are the usual rules Vigo applicable. Beasley, not Notter v. Sheriff of County (1960), 2d Ind. 166 N. E. and numerous cases cited. L. R. 2d This there See also A. law, the affidavit of Jewell Allison with the accom panying appellant photograph identified to that of was competent identity. appellant’s evidence to Notter establish v. Beasley, supra. appears appellant In fact it that admitted at hearing that photograph fact one of him.
Appellant contends that the trial court erred over next ruling objections purported telephone his to conversation Raymond Tryon, appellee
had between witness person presumed Bilyeu a Put have been Sheriff argued County, nam Cookeville, It is Tennessee. such evidence a is inadmissible unless foundation first be laid identity person as to the of the with whom the witness was speaking. However, we need such evi not determine whether improperly Appellant dence was admitted. fails show what prejudiced Further, manner such evidence his case. his identity already had been established his own admission picture it was affiant, indeed Allison, his that the Jewell Consequently, had identified. testimony the admission of the relating telephone conversation, improper would be if harmless error. argument
Appellant’s final is trial court’s decision contrary papers in that to law the extradition were defi- provides cient. Uniform Criminal Extradition Act part: charged “No demand for the extradition of a with recognized by governor crime in another state shall be writing accompanied by copy unless in of an supported by found indictment or an information having jurisdiction crime, in the state affidavit by copy magistrate there, of an affidavit made or
together .copy warrant which was issued *5 information, indictment, or affidavit made thereon. The charge person substantially magistrate the must the law of having under the a crime demanded with .committed by state; the execu- copy that be authenticated and the must prima authority making demand, which shall be tive (1956 9-421 of its truth.” Ind. Ann. facie evidence Repl.) Stat. § Also: issued unless not be “A of extradition shall warrant authority making the by presented executive documents that: show
demand 9-424], arising six Except under section 1. in cases [§ demanding present state at the time in the accused was of the .commission of from the alleged crime, fled and thereafter state; state, is in this and The accused now by lawfully charged by in or indictment found 3. He is by supported prosecuting filed officer formation facts, or affidavit made before affidavit to the having magistrate state, committed a that state, or he has crime under laws of that that escaped in that and has from been convicted of a crime confinement or broken state parole.” Ann. 9-423 Ind. Stat. his § (1956 Repl.) alleged, by appellant, to be is warrant of extradition nothing (1) present case since: there insufficient in the showing stating contained that accused therein or demanding time of the state of at the Tennessee document; way (2) that the document of sworn offense allege entitled fails to that acts com- “State Warrant” signing act; (3) plained of constitute unlawful an no identified the “State manner Warrant” is officer; (4) requisition prosecuting that the documents do not affidavit, or indictment contain information on which to extradition; (5) that nowhere in the docu- base a warrant of ments contained Governor’s Warrant Extradition is any allegation felony, or there that a even misdemeanor had Tennessee; (6) committed that been “State War- vague allege properly not rant” is so it does a crime. Upon papers prop a careful examination of the extradition erly part case, made a of the record in our it is conclusion appellant’s sufficiency contentions as to their are
completely appellant’s points without merit. All of re lating deficiency to the papers of the extradition will be presented dealt with in the order above: (1) requires the statute the documents [§9-423] *6 presented by show authority demanding the executive state present that the accused was in that state at time the alleged the was offense committed thereafter It is and fled. from prosecuting clear attorney, the affidavit of the sworn notary public before a governor’s and attached to the de- appellant mand committed. present that was at the time the offense was (2) statutory requirement not it is that the “State allege complained Warrant” that the act of constitute an requires only 4-923(3) unlawful act. Section that the docu- sought lawfully ments filed show that the has been charged having committed a under the laws crime of that state. support- The “State Warrant” in addition to all ing clearly requirement. documents satisfies this (3) require prosecuting the statute does not the attorney sign accompanying supporting papers the “State Warrant.” The governor’s by demand include an affidavit Jewell Judge Allison made County, Putnam Clearly Tennessee. 9-423(3). this satisfies § (4) statutory requirement the demand ac- be companied by copy of an indictment found or an in- supported by formation having juris- affidavit in the state by copy diction or magistrate of an affidavit made before a is satisfied 9-421] the affidavit of Jewell [§ Allison.
(5) the contention that nowhere in the documents con- tained in the Governor’s Warrant of Extradition is there an allegation felony, that a or even a misdemeanor has been wholly committed in Tennessee is frivolous. (6) appellant fails to show in what manner the “State vague. manifestly Warrant” It is evident to this court properly alleged. the offense and its nature have been assigned
There no argued merit to those errors by appellant, hereby the decision of the trial court is affirmed.
Judgment affirmed. Jackson, J., concur; DeBruler, JJ., dis-
Arterburn, Givan, opinion. sents with
Dissenting majority opinion Jackson, to concur am unable J. I thereto. herein and dissent appellant attempted to extradite of Tennessee
The State brought peti- charge appellant on an .criminal Vigo Superior corpus in Court. writ of habeas tion for a against appellant judgment had was had and A trial follows: reads as Russell be therefore ordered that James Sumner “It is agent Bilyeu, up to Bill the State of delivered Sheriff State, agreeable transported to said Tennessee to laws Indiana.” States and the State of the United pertinent part Appellant’s new reads motion for a trial follows, to-wit: Sumner, plaintiff, James R. and moves now “Comes following grounds; each of the a new trial on Court for court is not sustained sufficient 1. The decision *7 evidence. contrary of the Court is to law.
2. The decision occurring trial, at as follows: Error of law the accepting into The erred in evidence over A. Court warrant, objection plaintiff herein the Governor’s of the by defendant; objections being which was such as offered follows, to-wit: (1) no in That there was statement the ‘State warrant’ demanding personally the was in of that accused the alleged at the time commission of the Tennessee of the crime. (2) The warrant’ contained in said Governor’s ‘State allege act’,
warrant does not the laws of the State an ‘unlawful nor a violation of Tennessee.
of (3) acknowledging the warrant’ con- ‘State governor’s being in tained said warrant is not identified as officer, prosecuting which the a states should Uniform Extradition Act
be done. Ind. Burns’ Ann. 9-423. must (4) Act accused That in said Extradition the by charged by found, lawfully informa- indictment or ‘. . . by by prosecuting supported and affidavit filed tion with officer facts, by magistrate made in or affidavit before a the State, having under laws committed crime the the Added). (Emphasis of that State ...’ affidavit, indictment or information is (5) there no That warrant. in said Governor’s contained in Gover- warrant contained said in the State (6) That felony been com- there is no to have nor’s warrant mitted. vague is and does not said State warrant al- (7) That alleges by approximately
lege crime reason that that in the matter. $5,000.00 was involved allowing contents of a tele- in erred Court B. The Raymond witness, Tryon, detective of phone conversation Haute, Indiana, alleged person to an City of Terre for Tryon Tennessee, by identified witness as of the State in State, objection plaintiff’s over from said officer a law alleged person from Tennes- conversation that Tryon hearsay. by was A detective regard Motion related as see To Strike was overruled Court. in this admitting erred in into the Court evidence the That C. Raymond Tryon, objection testimony of witness over testimony hearsay evidence; was that such plaintiff testimony being photograph plaintiff herein, that police department, Terre Haute was sent taken witness Tryon, Raymond Sheriff County, of Putnam identification, Tennessee, picture for was plaintiff herein. as identified admitting into evidence Court erred de- D. The Exhibit, plaintiff’s objections thereto, over for fendant’s the photograph and papers attached reason were in no manner Exhibit authenticated nor said proper laid foundation each or there a said photographs admitted. documents allowing evidence, The Court erred into E. over testimony objection, Raymond plaintiff’s Tryon, witness City Haute, Indiana, detective for the of Terre part, ‘. .. to have he stated defendant returned wherein to .’; . . that such statement Tennessee indicates alleged, plaintiff was Tennessee and would be a con- prejudicial plaintiff. clusion overruling plaintiff’s erred in The Court *8 4. Motion Stay Order. overruling plaintiff’s 5. The Court erred Petition Judge’s denying petition- Reconsideration of trial order Stay er’s Motion to order. WHEREFORE, plaintiff prays the Court for a new trial of this cause.
Woodrow Nasser S. Woodrow S. Nasser Attorney For Plaintiff MEMORANDUM by The is not sustained sufficient decision evidence in the following particulars: identify plaintiff 1. The evidence is insufficient to person requisitioned herein as one and the same and de- by manded for extradition from the Indiana Tennessee, identify State of nor is the evidence sufficient to plaintiff the the warrant person sought herein as one and by the same upon requisition of the Governor of the State of Indiana. plain- 2. evidence insufficient to establish The that the demanding State of tiff was Tennessee on the date of requisition. crime as set forth in the contrary following 3. decision is to law in par- ticulars : by It is not 1. sustained sufficient evidence.
2. It violates the Uniform Criminal Extradition Act of Indiana. It violates the Constitution of States, the United by XIV, denying plaintiff
Amendment process due of law. 4. Defendant prove by failed to sustain its burden to preponderance plaintiff of the evidence that is the same sought person and by requisition the State Tennessee its demand, upon requisition by the warrant the the Indiana; by Governor of the State of reason that prima facie case established as a matter of law wherein the name on the Governor’s warrant and the name same, plaintiff herein are the plaintiff overcome testifying that he was not one and the same requisitioned demanding nor was inhe State at the alleged offense, time of and that the burden of identifi- back cation shifted to defendant. 5. It violates the Acts of Assembly the General Indiana, 1935, 2, 3, Ch. 134.” §§ *9 Appellant’s Assignment single specification of Errors is the “1. overruling The Court appellant’s erred in motion for new trial.” summary
A pertinent evidence to the issues raised pleadings briefly herein is set forth as follows:
“STATEMENT OF EVIDENCE testimony, evidence, Statement of offered exhibits for objections thereto. Raymond Tryon, Appellee, witness for direct examina- tion, (Tr. p. 12-27; p. 1-26; A; p. 67 11 68 11 69-B. p. 69) Q. right. Now, photograph All after was sent to Bilyeu you Sheriff did later have a contact with his regard photograph officein to that ? A. I did. Q. you approximate upon can tell us the date And you did have this .contact? 18th, April A.
Q. you what And were advised on that date? object hearsay MR. to the NASSER: We would testi-
mony. COURT: Overruled. Bilyeu
A. Sheriff advised that he me had received the photograph per and identifications as Mr. Sumners. subject This was identified as involved in their locality, and a warrant would be forwarded for his arrest. (At Mr. Bauer handed this time Defendant’s Exhibit examination.) Nasser for
Number One Mr. (Tr. 1112-27) p. 67 object papers MR. NASSER: We would to the attached photograph. to the Honor, Your BAUER: we would MR. offer in evidence at this time what has been marked as Defendant’s Ex- identification, hibit Number for photo- One which is a graph an affidavit regard to, along which has been testified bearing signature Allison, a Jewell complainant named who is as the papers Requisition are contained in the and Warrant which already has been admitted into evidence. right, show— All let the record COURT: object to the admission MR. We would NASSER: been photograph. There has papers attached proper no foundation admission laid They manner papers not been in attached. have testimony whatso- no authenticated. There has been photograph. papers We have ever to the attached objections photograph. no to the introduction Objection Let show the record overruled. COURT: One offered and received Exhibit Defendant’s Number in evidence. THE NUMBER ONE IS IN EXHIBIT DEFENDANT’S FOLLOWING, TO-WIT: FIGURES AND WORDS 111-26) (Tr. p. 68 *10 on ‘Photograph Allison endorsed with Jewell back —9/22/68 E. C. Hale’ Agent I, duly Allison, being E. C. sworn Miss Jewell Identification, Hale, do sol- Bureau of Tennessee Criminal omly in Putnam Russell Sumner was swear that the James County, 20, 1967 in indictment Tennessee on October $6,000.00. approximately and In addition did defraud me of above, picture I to the same attached identified a of defendant have man, said have who me of and defrauded $6000.00 photograph my placing to this statement after photograph. name on back said of day September This the 22 of 1968. Allison
Jewell day Sep- me the 22 of and subscribed to Sworn tember, 1968. Hale E. C. /s/ Hale, Investigator E. C. Criminal Tennessee Bureau of Criminal Identification #1 Deft’s Exhibit (DBC) 10/4/68 (Tr. p. A) 69 CONCERN: IT MAY TO WHOM Jr., Attorney, 5th I, Officer, Assistant District A. F. Tennessee, certify hereby District, do State of Judicial Investigator Tennes- E. is a Criminal C. Hale Identification, Criminal and is authorized see Bureau of sworn oaths and take law to administer affidavits Tennessee. my day September, Witness 27th 1968. hand this Officer, Officer, A. F. Jr. /s/ A. F. Jr. Attorney District Assistant day me this the to and subscribed before on 27th Sworn September 1968.
John R. Officer Notary Public My Expires Commission
4-15-70 TENNESSEE OF
STATE COUNTY OF PUTNAM Vaughn, I, Circuit Court Clerk of Putnam Charles Coun- certify Officer, genuine ty, Tennessee, signature Jr., that A. F. whose foregoing, duly ap- to the is subscribed is the Attorney pointed County, Assistant General for Putnam Tennessee, Circuit, 5th Judicial and was at foregoing, and that his attestation is in date due form, official acts. that full faith and credit is due to all of the my day Sept. hand this the 27 Witness Vaughn' Charles C. /s/ Vaughn, Charles Circuit Court Clerk (SEAL) (Tr. p. B) direct, Appellee, TRYON, witness for RAYMOND examina- 19-27; (Tr. p. 11-24; p. 66 111-2.11 tion, 12-21) 65 11 67 11 long telephone 23rd, I distance call March A. received year. Q. originate *11 did the call And from where —where from? Bilyeu, Bill County, It was from Sheriff of Putnam A. Tennessee. Cookeville, object, would strike, MR. NASSER: We based call received. and move to upon problem identification telephone a Overruled. COURT:
Q. you when do recall this call was And received? thirty p.m., 23rd, March the
A. Twelve 1968. Q. you the Court of Would advise what the —what request you got was regard nature of the to Mr. Sumner? any hearsay object testi- MR. We would to NASSER:
mony, question which the calls for as it relates to the telephone call received. Overruled. COURT: telephone inquiry call into was an
A. The nature records or identification of James Russell Sumner Huddleston, who were and Charles believed involved in— object any testimony would to re-
MR. NASSER: We garding anyone petitioner other than in here. charge. go I don’t think we need to into COURT: words, identification, I In other as a matter of think testify can as to that. he Q. right. Now, photograph All after was sent Bilyeu regard you Sheriff did later have a contact with his photograph? officein IA. did.
Q. you approximate upon us And can tell date you contact? did have this 18th, April A.
Q. you And what were advised on that date ? object hearsay would MR. NASSER: We mony. to the testi-
COURT: Overruled.” law, process Appellant to obtain due is incum- For judgment of the trial court be reversed. that the bent Appellant’s objections court overruled to the The trial telephone Raymond purported conversation had between Appellee, person purportedly Tryon, have been Sheriff Tennessee. witness Bilyeu County, Cookeville, Bill of Putnam (Tr. 651119-27). long telephone “A. I distance received call March the 23rd, year. originate Q. did call where —where from ? And from Bilyeu, County, Bill from of Putnam Sheriff A. It Cookeville, Tennessee. object, strike, would We move to MR. NASSER: upon problem by telephone based call received. identification Overruled. COURT: (Tr. p. 1-24) 66 11
689 Q. you ? And do when this call was received recall thirty p.m., 23rd, A. Twelve March Q. Now, you acquainted personally are with a James
Russell Sumner?
IA. am.
Q. you present you And point if see him in Court would to him and state his name? him, A. This is James Russell Sumner. you MR. BAUER: Would let the record indicate that pointed
the witness to the Petitioner matter. Q. you the Court of what Would advise the —what request you got regard nature of the was that to Mr. Sumner? object any hearsay would MR. NASSER: We which question telephone calls for as relates to
the received. call Overruled. COURT: telephone inquiry call was an nature of into
A. The identification James records or of a Russell Sumner the and Charles Huddleston, who were believed involved in— object any testimony would MR. NASSER: We re-
garding anyone other than the Petitioner in here. go I charge. don’t think COURT: we need to into the identification, In other words as a matter of I think testify (Tr. p. 1-24). he can as to that.” 66 11 showing by Appellee was no There made that witness recognized Tryon the voice with whom he speaking nor was other foundation laid to estab- identity speaker alleged lish Bill to have been Sheriff Bilyeu. telephone such conversation to be To allow admitted as Appellee it was essential evidence establish that Raymond Tryon, recognized witness, the tified, long or otherwise iden person from whom the voice of the he received the telephone call testified O’Shea, distance to. Holland v. 515, App. (1950) ; 95 2d 342 Ill. N. E. 127 Burton v. Insurance Company, Mutual 310, 84 A. 2d Pacific Life Pa. 613. adopted Uniform Extradition Act was in Indiana 49, Title of Acts p. 134, under the commonly ch. 1-31 more § Ann. Statutes, referred as Burns’ Indiana have 9-402—9-417 (except Burns’ 9-419—9-447 been 2, 5). ch. repealed Acts § Demand, form of the provides the 9-421 of Burns’ Section to wit: *13 Demand.— of Form 9-421. charged person with aof extradition for the demand No governor by recognized the be shall state in another crime by copy indict- accompanied a of an writing and in unless by supported affidavit by information an or
ment found crime, by copy or a having jurisdiction the of the state in magistrate there, together made affidavit of an was issued thereon. copy warrant of with information, made before the indictment, or affidavit The charge substantially the de- magistrate must having a crime under the law of committed manded with that by state; copy must authenticated the be and the demand, making authority be which shall executive 49, (Acts 1935, ch. of its truth. prima evidence facie 3, 134.) p. § provides the contents of the docu- authority and, ments 9-423 what Section by of presented the demand- the executive contain, ing to wit: state should Papers.— of 9-423. Contents shall not issued unless the A warrant of extradition authority making by presented documents the executive the demand show that: arising 9-424), six Except (§ cases under section demanding present state at the in the accused
the time after fled from the alleged crime, there- of commission state; state, accused is now this 2. The lawfully charged by by indictment found or is 3. He by prosecuting supported officer and information filed facts, by by or affidavit made before a affidavit to the having state, magistrate a crime committed state, that he has been con- the laws of that or under victed escaped in that and has from of a crime state (Acts 1935, parole. broken his ch. confinement or 134) p. § herein issued the Governor of extradition warrant issued on insufficient documents Indiana was of State of papers, requisition as follows: in the contained nothing (Tr. p. 58 to Tr. contained therein (1) There demanding stating accused was State that the 64) alleged by way of of at offense Tennessee the time of (1) any documents must State states that such sworn Burns’ 9-423 document. demanding in the the accused was ‘show’ alleged of crime. at the time of commission paper the State of is no within documents from There Tennessee, said Prosecuting Officer which has sworn to been demanding at the the accused was in the herein alleged Larceny By Trick on or about time of the 18th the crime of day October, only made 1967. The reference of being allegedly of Tennessee at accused time of the within the State alleged containing page crime is Request of the Governor Governor of Tennessee to the allegation Indiana which is no such than an unverified more (Tr. p. 59). as a ‘State War- (2) the document self-identified That alleges facts in no manner or states rant’ act, an or that such was a viola- unlawful therein constitute Tennessee, required by tion of the laws of the State adopted Extradition Act as the State of Indi- Uniform Statutes, (Tr. p. 62). Burns’ Indiana Anno. ana. 9-423 See (3) : *14 papers. A of ‘9-423. Contents of warrant extradition by presented not be issued the documents shall unless the authority making the show that: executive demand lawfully charged having . . . with 3. He is committed (Acts 1935, a crime under the laws . . that State. . ch. of added). 49, 5, p. 134) (Emphasis § person signing is in (3) no The the ‘State Warrant’ being ‘prosecuting as is re- manner identified as officer’ quired by by adopted Uniform Act as the State Extradition Statutes, (Tr. p. 62) of Indiana. Burns’ Indiana Anno. See (3): 9-423 papers. A warrant of extradition of ‘9.423. Contents presented issued unless the documents the not shall executive be authority making demand show that: the lawfully charged by indictment found or in- He is 3. prosecuting supported by filed formation officer 1935, 5, p. (Acts 49, 134) the facts. . . . ch. to affidavit § added). (Emphasis requisition any (4) documents do contain That the not on affidavit, indictment which to base a war- information or necessary as is Uniform Ex- rant of extradition under the adopted by (Tr. Act as pp. State of Indiana. tradition 49, 1985, ch. Acts Statutes, 9-421. Anno. Burns’ Indiana 61) (Tr. p. requisition 3, 134.) application for a The § at- copy an indictment of states that there is a certified being made, but requisition is thereto, tached on which said Gover- contained an examination of the documents being unable (Tr. 58-64) in one pp. results nor’s Warrant fatal is a that Appellant contends to find such. omission. 536, 180 N. E. Beasley, 242 Ind. ruling Dawson v. The of requisition in the an indictment the lack of
2d papers, reason case herein. herein, by application wit, complaint, no has to supporting documents such there no are contained (5) documents That nowhere allegation is there of Extradition Warrant Governor’s misdemeanor, been committed felony, had that a within and or even 58-64). (Tr. pp. against of Tennessee. the State Act, adopted in the Uniform Extradition The persons expedite extradition Indiana, adopted to was they demanding have sought charged been state wherein to no crime case, there is a crime. In this hence, against Tennessee; charged no basis for the State Act. use vague (6) it does Warrant’ is so That ‘State allege properly (Tr. p. 62).
not
a crime.
adopted
hap-
Extradition Act was not
The Uniform
legal guideline
hazardly
for the
followed,
as a
but serves
justice.
extraditing fugitives from
follow in
courts to
courts are bound to demand some
positive identification of
sought,
petitioner
if
the one
prima
aspects
Warrant of Ex-
overcomes the
facie
case, Appellant
In
overcame such
tradition.
prima
the instant
identification, by testifying that
facie
he
not the
Warrant,
sought by
Russell Sumner’
said
nor was
‘James
(Tr. p.
he
p.
properly
of Tennessee.
Tr.
ever
the State
19-23.
52, 1.1)
Appellee
Hence the burden
shifted
identify
sought.
Appellant as the one
*15
Act,
adopted
Extraditoin
the State
The Uniform
procedural
features,
Indiana,
certain
Cook v.
liberalizes
933,
500,
Rodgers,
received
20
2d
215 Ind.
N. E.
but
documents
Demanding
of Indiana from the
the Governor
prima
certain basic
contain
elements
must
State
against
person sought.
can be made
facie case
4, 2,
Rodgers, Supra.,
FCA,
U.
Const. Art.
S.
7
Cook v.
§
18, 662.
til.
§
interpretation
Even
Beasley,
the liberal
in Notter
made
v.
Ind.
166 N. E. 2d
wherein it was held that if
person being sought
the
then
petitioner,
has the same name as
prima
identity
established,
facie case of
does not
apply
appellant
herein. When
pre-
overcame the rebuttable
sumption by
testimony
his
stated,
(Tr. p. 51, 11,
as above
52, 11,
1-2)
12-27. Tr.
then the entire Governor’s War-
rant was
identity.
otherwise insufficient to establish
It is submitted that for the Court to have allowed the
instance,
Governor’s Warrant
into evidence in the first
over
appellant’s objections,
that he was denied Due Process of
Law,
secondly,
for
judgment
the Court to make the
did,
upon
incomplete
which it
based
an
inadequate
Extradition,
Warrant of
contrary
such was
to law in
”
Indiana.’
I
opinion
am of the
the court
denying
committed error in
application
corpus
for writ of habeas
judg-
and that the
Vigo
ment
Superior
Court should be reversed and
cause
grant
remanded with instructions
the writ
to the
plaintiff.
Eeported in
Note. —
Cowherd v. Indiana. April 8, petition [No. Filed 569S124. rehearing 1970. No filed.]