Raftery Ex Rel. Huie Fong v. Bligh

55 F.2d 189, 1932 U.S. App. LEXIS 3733

• Court: Court of Appeals for the First Circuit
• Decided: January 19, 1932
• Docket: 2580
• Status: Published

Opinions

BINGHAM, Circuit Judge.

This is an appeal from a decree of the District Court for Massachusetts, dismissing a petition for a writ of habeas corpus and remanding the petitioner to custody.

March 2, 1931, Ed. J. Goff, attorney for Hennepin county in the state of Minnesota, applied to the Governor of that state for a requisition upon the Governor of the state of Massachusetts for Hide Pung, stating that he stood charged by complaint with the crime of murder in the first degree committed in the county of Hennepin, in said state, on the 8th day of June-, 1930, and was a fugitive from the justice of the state and now in Massachusetts; that the fugitive was under arrest; that all the papers submitted with the application had been compared, were in triplicate, and were in all respects exact counterparts; that there was attached to his application a true and correct copy of the complaint, a correct copy of the warrant of arrest issued on the complaint, a copy of the statute upon which the charge against the accused was based, defining said crime and the prescribed punisbinent therefor; and requested that James L. Mullen, a police officer of the city of Minneapolis, be appointed as agent to act for the state in the matter.

On March 3, 1931, the Governor of Minnesota issued a demand on the Governor of Massachusetts, in which he stated:

“Whereas it appears by complaint and affidavits (a copy whereof is hereunto attached and which I certify to be authentic and duly authenticated in accordance with the laws of this State) that Huie Fung stands charged with the crime of murder in the first degree committed in the County of Hennepin in this State, (which I certify to be a crime under the laws of this State) and it having been presented and satisfactorily shown to me that said Huie Fung since the commission of said offense has fled from the justice of this State and now is a fugitive from the justice thereof, and may have taken refuge in the State of Massachusetts,

“Now, therefore, pursuant to the provisions of the constitution and laws of the United States in such ease made and provided I do hereby request that the said Ilnie Fung be apprehended and delivered to James L. Mullen who is hereby appointed agent to convey him to the State of Minnesota there to be dealt with according to law.”

March 24, 1931, the Governor of Massachusetts issued his warrant, in which, after reciting that it had been represented to him by the Governor of Minnesota that Huie Fung was charged in that state with the crime of murder in the first degree, who certified the same to be a crime under the laws of that state committed in Hennepin county in said state, that he was a fugitive from justice, that a demand “pursuant to the Constitution and Laws of the United States” had been made by the Governor of Minnesota for the arrest and delivery of Huie Fung to James L. Mullen as agent; and further stating that the representation and demand were accompanied “by certain documents whereby the said Huie Fung is shown to have been duly charged with the said crime and to be a fugitive from the justice of the State of Minnesota, and to have taken refuge in this Commonwealth, which documents are certified by the governor of the State of Minnesota to be authentic and duly authenticated,” the warrant concludes: “Wherefore, you are required to arrest and secure the said Huie Fung, wherever he may he found within this Commonwealth and afford him [an] opportunity to sue out a writ of habeas corpus, * * • and thereafter deliver him into the custody of the said James L. Mullen to be taken back to the state of Minnesota from which he fled.”

Among the documents accompanying the demand and attached thereto was a copy of a complaint subscribed and sworn to by James L. Mullen (a police officer of Minneapolis and a deputy sheriff of Hennepin county) before the judge of the municipal court of the City of Minneapolis, in Hennepin county, Minn., which complaint in substance states that on the 8th day of.June, 1939, within the corporate limits of the city of Minneapolis, Hennepin county, Minn., Hnie Fung, then and there being armed with a revolver loaded with gun powder and leaden bullets, then and there feloniously, intentionally, without excuse or justification, without authority of law, and with premeditated design to effect tho death of a human being, one Woo Sam, did kill and murder the said Woo Sam by discharging said revolver into the body of Woo Sam, inflicting a mortal wound of which the said Woo Sam thereafter died on the 9th of June, 1930'.

An affidavit of facts and circumstances in support of the complaint, subscribed and sworn to by James A. Mullen before the judge of said municipal court, also accompanied and was attached to the demand, in which it was stated: “That the circumstances and facts showing the commission of the crime charged in the complaint against Hnie Fung are as follows: That affiant now is and for forty-five years has been a resident of the City of Minneapolis, County of Hennepin, State of Minnesota. That affiant now is and for seventeen years has been a police officer of the City of Minneapolis, County of' Hennepin, State of Minnesota. That on June 8, 1930> at about 11.39 p. m., one Woo Sam, a Chinaman, was shot in front of 1328 Seventh Street South, in the City of Minneapolis, Hennepin County, Minnesota; that said Woo Sam lived at and conducted a laundry at said 1122 Seventh Street South in said City of Minneapolis; that said Woo Sam had been visiting at Number 715 Third Avenue South in said City of Minneapolis, and was on his way home; that as said Woo Sam arrived in front of said 112,2 Seventh Street South, an automobile, with three men therein, stopped in front of said 1122 Seventh Street South, and said Huie Fung stepped out of the said automobile, walked up to Woo Sam and when he, said Huie Fung, was near said Woo Sam, said Huie Fung began to shoot at said Woo Sam, shooting five times' and five bullets hit said Woo Sam; that said Woo Sam dropped to the sidewalk and said Huie Fung then ran to the automobile and was driven away; that said Woo Sam had known said Huie Fung for eight years and was positive that the man who shot him was Huie Fung; that said Woo Sam was taken to the General Hospital of the said City of Minneapolis, where he, the said Woo Sam, died on the ninth day of June, 1930, from the gun wounds so inflicted by said Huie Fung; that said Woo Sam, just before he died, knowing that he was going to die and was dying, made his dying statement in writing stating the facts as herein made and signing said statement in the presence of witnesses; that a true and correct copy of the dying statement of said Woo Sam is hereto attached and made a part hereof. That said Huie Fung immediately left the City of Minneapolis, County of Hennepin, State of Minnesota; that the whereabouts of said Huie Fung was not known until February 28, 1931; that said Huie Fung is now in the City of Boston, Massachusetts.” ■

The copy of the dying declaration of Woo Sam attached to the affidavit is in question and answer form. It was given by Woo Sam in the presence of Frank Forestal, James L. Mullen, and W. S. Wood, and, upon being transcribed, was signed by Woo Sam in their presence, who attested his signature. It appears to have been taken in the General Hospital, to which Woo Sam had been removed, at 12.30 a. m. June 9,1930, the day on which it is alleged in the complaint that Woo Sam died, and about one hour after he was shot. It reads as follows:

“What is your name? A. Woo Sam. Q. Where do you live? A. 1122 7th St. So. Q. How old are you? A. 55. Q. What is your business? A. Laundry. Q. At 11.15 p. m. June 8th you were shot at 11th St. & 7th Ave. So., do you know who shot you? A.-'Huie Fung. Q. Did he say anything to you before he shot you? A. Nothing. Q. Was there anyone with him? A. Two or three. Q. How close was he to you when he 'shot you? A. Right by me, not over a foot or two away. Q. Did you see what kind of a gun he had? A. No. Q. How long have you known Huie Fung? A. Seven or eight years. Q. You are positively sure it was Huie Fon who shot you? A. Yes. Q. Did they drive away in a ear or walk away? A. He got out of ear, shot and ran back to ear again and drove away. Q. Was anything said after he shot? A. Nothing. Q. There is no question in your mind but what it was Huie Fon who shot you? A. There is no question in my mind but that was Huei Fun. <3- Did any of’the other fellows get.out of the ear when the shooting took place? A. Only Huei Fun. Q. Do you know that you are going to die? A. Yes. Q. This is a true statement of facts that you have given us? A. Yes. Q. Are you willing to sign this after it has transcribed into typewritten form and you have had a chance to read it? A. Yes.”

The demand of the Governor of Minnesota was also accompanied by and had attached thereto two further affidavits; one subscribed and sworn to by Ark Sing, before the judge of said municipal court, in which the affiant stated that he had been a resident of the city of Minneapolis for five years; that for over four years he had been the owner of and conducted a laundry at 702 Sixth Avenue North in that city; that he had known Huie Fung for five years; that on the 3rd day of June, 1930, he saw Huie Fung walking on the sidewalk opposite his laundry in the city of Minneapolis and watched him walk up the street.. There is a picture attached to the affidavit, taken in two postures, shown to have been taken of the relator after his arrest in Massachusetts, and the affiant states that the picture attached and made a part of his affidavit is a true and correct picture of Huie Fung. The other accompanying affidavit is sworn to by Dong Toy before the judge of said municipal court. In this the affiant states that he is and for ten years has been a resident of Minneapolis, and now is and for three years has been the owner of and conducted a laundry at No. 614 Seventh Street South in Minneapolis; that he has known Huie Fung for ten years; that on June 8, 1936, he saw Huie Fung in an automobile with two other Chinamen, said Huie Fung being in the back seat, and one of the other Chinamen driving; that Huie Fung with the other two Chinamen drove past the affiant’s laundry twice; and that the picture attached to his affidavit, which is the same picture taken in two postures and attached to the affidavit of Ark Sing, is a true and correct picture of Huie Fung.

The petition for writ of habeas corpus, filed March 5, 1931, is brought by Mae E. Raftery at the relation of Huie Fong against Joseph L. Ferrari and Thomas E. Bligh. In it she complains that Huie Fong, otherwise known as Hong Foo, is unlawfully restrained of his liberty by the respondents under a warrant issued by the Governor of Massachusetts; that said Huie Fong, otherwise known as Hong Foo, is not the person designated in said warrant and held under the authority thereof; that said warrant does not purport to authorize the arrest and detention of Huie Fong, otherwise known as Hong Foo; and that Huie Fong, otherwise known as Hong Foo, is not the person alleged to have committed the crime set forth in the demand upon which the warrant of the Governor of Massachusetts issued.

A writ of habeas corpus having issued on said petition for the production of the body of relator, the writ was served and the respondents brought him into court and filed an answer and return. In the answer and return the respondent Bligh denied that he had the relator in custody and denied each and every other allegation of the petition. The respondent Ferrari answered that he was a state police officer of Massachusetts authorized to serve warrants in criminal cases; that the relator was in his lawful custody and keeping by virtue of a warrant of tho Governor of Massachusetts as a fugitive from justice of the state of Minnesota, making a copy of the warrant a part of his answer; that the warrant had been served upon the relator who had been arrested thereon; that the relator is lawfully held and detained in his custody to await full execution of the warrant ; and that the relator so held under said warrant is the identical person named therein as the alleged fugitive — meaning ITuie Fung.

The relator filed a reply traversing the return of the respondent Ferrari, denied each and every allegation of the return, save and except that the relator admitted that the respondent was a state police officer of Massachusetts, and that the only alleged or pretended justification of the respondent for his detention of the relator was by virtue of the alleged executive warrant of the Governor of Massachusetts. It was further averred in the traverse or reply that the warrant was issued without due authority of law and afforded no justification to the respondent for the detention of tho relator.

A hearing was had in the District Court on April 10, 3931, after which, on that day, the petition was ordered dismissed, tho writ discharged, and the relator remanded to the custody of Ferrari. This is the decree appealed from.

In entering this decree, the District Court in substance and effect ruled that the demand of the Governor of Minnesota and the accompanying papers furnished sufficient and adequate grounds for, and justified the Governor of Massachusetts in, the issuance of his warrant for the arrest and return of the person demanded; and found that tho presumption arising from the issuance of the warrant —that Huie Fong was a fugitive from the justice of the state of Minnesota — was not overcome; and that the relator was the identical person demanded.

The proceedings before the Governor of the state of refuge in matters of this kind are summary in their nature, and he may or may not grant a hearing before him. L’n this case, as authorized by the statutes of Massachusetts (G. L. Mass. c. 276, § 12), the Governor of Massachusetts directed a hearing before the Attorney General of that state, which was had, and, the Attorney General having made his report, the Governor took the matter under consideration, and issued his warrant, in which he recited his findings to the effect that the demand was accompanied “by certain documents whereby said Huie Fung is shown to have been duly charged with the said crime and to be a fugitive from the justice of the state of Minnesota; and to have taken refuge in this commonwealth, which documents are duly certified,” ote. Tho issuance of the warrant, with or without a recital therein that the person demanded is a fugitive from justice, must he regarded as presumptively right until the legality of tho warrant is overthrown by contrary proof. Munsey v. Clough, 196 U. S. 364, 372, 25 S. Ct. 282, 49 L. Ed. 515; Hogan v. O’Neill, 255 U. S. 52, 41 S. Ct. 222, 65 L. Ed. 497. And the burden of overcoming this presumption is cast upon the relator in this habeas corpus proceeding to review the action of the governor. Munsey v. Clough, supra, 196 U. S. at page 372, 25 S. Ct. 282, 49 L. Ed. 515; Hogan v. O’Neill, supra; State v. Clough, 71 N. H. 594, 600, 33 A. 1086, 67 L. R. A. 946; State v. Clough, 72 N. H. 178, 55 A. 554, 67 L. R. A. 946.

Whether the person arrested is the identical person demanded is not a question presented for the consideration of the Governor of the state of refuge; for, at tho time the demand is made, no such question has arisen, as no warrant has issued and no arr est has been made thereon. But, after an arrest on the warrant, this question may be raised in a habeas corpus proceeding; and, as to this matter, there being no presumption that the person arrested is the person demanded, the burden of the issue is upon the respondent.

In this case there can he no question but that the papers acompanying the demand were certified by the Governor of Minnesota to be authentic and to be duly authenticated.

The main question raised by the assignments of error is whether the complaint and accompanying affidavit of Officer Mullen, charging the person demanded with the crime of murder in the state of Minnesota, are such a compliance with section 5278 of the Revised Statutes of the United States (18 US CA § 662) as would authorize the Governor of Massachusetts in issuing his warrant' for the arrest of the person demanded.

The solution of this question depends upon the meaning of the word “affidavit” as used in section 5278, construed in the light of the Fourth Amendment of the Constitution.

It is weE settled that the “affidavit” called for by section 5278, when so construed, is an affidavit stating faets of the affiant’s own knowledge, which would he admissible as evidence and sufficient to warrant a finding of probable cause of the commission of the offense by the person charged therewith. Ex parte Hart (C. C. A.) 63 F. 249, 28 L. R. A. 801. See, also, the following eases with reference to section 3462 of the Revised Statutes (26 USCA § 1195) and the Fourth Amendment of the Constitution: Wagner v. United States (C. C. A.) 8 F.(2d) 581, 584, 585; Schencks v. United States, 55 App. D. C. 84, 2 F.(2d) 185; Rice v. United States (C. C. A.) 24 F.(2d) 479, 480; Ripper v. United States (C. C. A.) 178 F. 24, 26; 24 Op. Attys. Gen. 685.

And by a statute of Massachusetts (G. L. Mass. c. 276, § 11), apparently enacted in aid of and in conformity with section 5278 (18 USCA § 662) and the Fourth Amendment, it is expressly provided:

“Such demand * * * shall be accompanied by * * * a duly attested copy of an indictment or complaint made before a court or magistrate authorized to receive it. Such complaint shaE he accompanied by affidavits to the faets constituting the crime charged by persons who have aetual knowledgé there- * * * »

It may be suggested that the question is of a more narrow scope; that the demand of the Governor of Minnesota and the warrant of the Governor of Massachusetts were based on the sworn complaint of Officer MuEen alone; that the complaint does not disclose on its face that complainant MuEen did not have personal knowledge of the matters therein stated, and therefore' it is to be assumed that he had such knowledge. But the question cannot be so restricted. The demand of the Governor of Minnesota and the warrant of the Governor of Massachusetts, as the record shows, were both based upon the complaint and the accompanying affidavits, of which the affidavit of Officer MuEen was one. The complaint and supporting affidavit of Officer MuEen, being the basis of the demand and of the warrant respectively, must be read together, as they undoubtedly were by the Governor of Minnesota in making the demand and by the Governor of Massachusetts in issuing his warrant.

As the demand and warrant were based on the complaint and the accompanying affidavit of Officer MuEen, of which the dying declaration of Woo Sam was a part, the question arises whether they state faets competent as evidence and of the affiant’s knowledge from which the Governor of Massachusetts could find probable cause for issuing his warrant.

The relator’s contention is that the facts stated in MuEen’s affidavit and complaint are not of his own knowledge; that it appears from the affidavit that the faets stated in it and in the complaint are faets most of which are contained in the alleged dying declaration of Woo Sam, a parf of the Mullen affidavit. It is also contended that the alleged dying declaration of Woo Sam is not one that would be admissible as evidence at a trial for his homicide, and consequently would not be admissible as a fact stated in the Mullen affidavit, on the ground that it was not voluntarily made when conscious of impending death and when the declarant had abandoned all hope of living. 30 C. J. §§ 493, 497, 498.

The question whether the dying declaration was voluntarily made by Woo Sam, when conscious of impending death and with no hope of recovery, involves a preliminary question of fact, which, in the first instance, the Governor of Massachusetts had to determine. And whether the warrant of the Governor contained or did not contain a. recital that he found the requisite faets to exist, it is, nevertheless, to be presumed that he did; and the burden of showing the contrary was on the relator. Munsey v. Clough, 196 U. S. 364, 372, 25 S. Ct. 282, 49 L. Ed. 515. It is apparent that the faets stated in the affidavit of MuEen constituted evidence from which the Governor of Massachusetts could find that the declaration of Woo Sam was voluntarily made while conscious of impending death and with no hope of recovery. It appears therefrom that on June 8, 1930; about 11.30 p. m., Woo Sam was shot; that he died the next day, June 9, 1930, from the bullet wounds; that he was shot at five times and five bullets lodged in his body; that at 12.30 a. m. June 9; about an hour after he was shot, and while at the General Hospital where he had been taken, he made the alleged ■dying declaration, and then stated that he knew he was going to die; that he died thereafter on that day; and that he signed the written declaration which he there made.

If the presumptive findings as to the validity of the dying declaration might have been overcome by evidence before the District Court, the relator offered no such evidenee, and, sueh being the case, it is to be regarded as voluntarily made when the doclarant was conscious of impending death and when he had abandoned all hope of recovery; and we so regard it.

The question, however, remains whether a valid dying declaration, stating facts competent as evidence at a trial for the homieide of the declarant, if made in the presence of an affiant, may bo stated in his affidavit as of his own knowledge, and tho complaint, supported by such an affidavit, be regarded as complying with section 5278 and the Fourth Amendment. While the question is a novel one, it seems to us that the dying declaration of the victim is an evidentiary fact which an affiant before whom it was made may set out in his affidavit and have treated as a fact within his own knowledge and as competent _ evidence of the crime charged. And, while a dying declaration, testified to by a witness with knowledge of its making, is in a sense, hearsay, yet in the law of evidence it is not so regarded, but is competent proof of the facts therein deelared. Wo a.re therefore of the opinion that the supporting affidavit of Mullen, in connection with the sworn complaint, met the requirements of the provisions of the Constitution and of the Revised Statutes above referred to, and were, as a matter of law, suffieient to justify the Governor of Massaehusetts in the issuance of his warrant.

It is objected that, in the dying declaration, the name “Huie Fung” appears in some instances as “Huie Fon” and “Huie Fun.” But we regard (líese as typographical errors of the transcriber which apparently did not confuse or mislead the Governor of Massaehusetts in determining who the person charged with crime in the dying declaration was, and, at the most, only affected its weight, not the competency of the declaration.

The Governor of Massachusetts had before him abundant proof that Huie Fung, the person demanded, ivas a fugitive from justice, It appeared that he was in Minneapolis late in the afternoon of June 8, 1939, on which day the mortal wounds were inflicted of which Woo Sam died, and that later he was found in Massachusetts. At the trial in the District Court, the relator failed to overcome this p re-sumption or finding, and the court so found,

0n tho questíon wheíher relator was Huio Fung, the person demanded, tho Dis-triet Court ruled that the burden was on tho respondents, and, proof being offered, found that the relator was the person demanded,

The affidavlts of Ark Smg and Dong T°* tta attached photographs were re-cciv®d m ev,ldenee a,nd ™der.ed ^ thG GOUr\ 7°n ^G questlM1 of the identity of the relator and the person demanded, subject to the exception of the relator. They were undoubtedly competent evidence before tho Governor on the question whether tho perscm demanded was a fugitive from justice, for the Governor was entitled to receive such evidence as to him seemed worthy of credit, Munsey v. Clough, 196 U. S. 364, 25 S. Ct. 282, 49 L. Ed. 515; State v. Clough, 72 N. H. 178, 55 A. 554, 67 L. R. A. 946. But D)0 relator in none of his assignments of er-ror complains that the court erred in receiving those affidavits. The only assignment complaining of the reception of evidence at the trial is No. 19, which was filed in the District Court May 16, 1931, about a month after tho appeal had been taken to this court, The appeal had beon anowed on the 18th of April, 3931, on which day the appeal bond and gome eighteen assignments of error were f]ied- The alleged nineteenth assignment of error, not having been filed in the District Court until aft® the case had been removed to this court, is not a part of the appeal record. But this supposed assignment does not complain of tho admission in evidence oC the two affidavits of Ark Sing and Dong Toy. The matter there attempted to be assigned as error was that the court erred in admitting “the testimony of one James L. Mullen relalive to the alleged dying declarations or statements of Woo Sam.” The testimony of Mullen relative to the alleged dying deelaration of Woo Sam had nothing to do with the admission o£ the affidavits of Ark Sing and Dong Toy, and no exception was taken to this testimony of Mullen. There was an exceplion taken to tho introduction in evidence of the original written declaration signed by Woo Sam but the supposed assignment of er-ror’ ^od ^ay 46, 19»1, is not based on this exception, and, if it were, the question raised waaW without merit,

The decree of the District Court is affirmed.