State Ex Rel. Lea v. Brown

64 S.W.2d 841, 166 Tenn. 669, 2 Beeler 669, 91 A.L.R. 1246, 1933 Tenn. LEXIS 135

• Court: Tennessee Supreme Court
• Decided: December 9, 1933
• Status: Published

Opinions

The relators, held in custody under a warrant of the Governor of Tennessee issued pursuant to a demand of the Governor of North Carolina for their return to that state as fugitives from justice, filed their petition for the writ of habeas corpus to test the validity of the Governor's warrant. The trial court dismissed the petition upon demurrer, and the relators have appealed in error.

The statutes of Tennessee authorize and direct the arrest, and delivery to another state, of persons who are "subject by the constitution and laws of the United States to be delivered over upon demand of the governor of such state or territory." Code 1932, sec. 11927.

The Constitution and statutes of the United States direct such rendition of all persons charged in the demanding state with crime, who shall "flee from justice." Every such person is required to be transported, upon proper demand, to the state "from which he has fled." Constitution, art. 4, sec. 2; U.S. Code, title 18, secs. 662, 663 (18 U.S.C.A., secs. 662, 663).

Whether the relators are fugitives from justice, subject to rendition upon demand of the State of North Carolina, is a question of fact. If they are not fugitives from justice, within the meaning of the Constitution and laws cited, they are entitled to be discharged in this proceeding. South Carolina v. Bailey, 289 U.S. 412, 53 S.Ct. 667, 77 L.Ed., 1292; Illinois ex rel. McNichols v. Pease,207 U.S. 100, 28 S.Ct., 58, 52 L.Ed., 121.

A fugitive from justice, within the sense of this inquiry, is necessarily one who, being charged with crime in the demanding state, has fled therefrom. The statute enacted by the Congress so construes and defines the constitutional provision.

The facts of the case before us, established by the petition of the relators and the exhibits thereto, are that the relators, in March, 1931, were charged by indictments in North Carolina with conspiring with others to violate certain provisions of the banking laws of North Carolina denouncing embezzlement and misapplication of the funds of a bank. Neither of the relators was in the State of North Carolina at or near the time such conspiracy is alleged to have been formed nor when any overt act was committed in furtherance thereof but both of them "voluntarily entered their appearance in the Superior Court of Buncombe County (N.C.) and gave bond to answer the charges in said indictments." They were not tried upon the indictments to answer which they voluntarily entered their appearance, but on July 27, 1931, two other indictments were returned against them, after which the original indictments were dismissed. The new indictments were then consolidated for trial, and upon them relators were tried and convicted. The new indictments were similar in form to the first, but differed in scope and character, in that additional conspirators were named; and, in the second of the two new indictments, now known as the seventh count, the relators were for the first time charged with consummating the alleged conspiracy, through the agency of their coconspirators who were in North Carolina, by actual misappropriation and embezzlement of funds. That the charge made by the new indictments was, however, essentially the same as that contained in the first indictment, was recognized by the relators when they pleaded in abatement to the new indictments that the original indictments undertook to charge them "with the same alleged offenses," and they therefore pleaded "former suits pending." It was no doubt because of this plea that the original indictments were dismissed.

Counsel are incorrect in saying that the conspiracy charge in the seventh count of the indictment was "waived." It was expressly relied upon to establish the relators' responsibility to the State of North Carolina for the overt acts done within the state in furtherance of the conspiracy, and the jury were so instructed by the trial judge in submitting the case for their verdict.

After their conviction in the superior court of Buncombe County, the relators were released on bail pending disposition of their appeal to the Supreme Court of North Carolina. State v.Lea, 203 N.C. 13, 35, 164 S.E. 737. Upon affirmance of the conviction and remand of the case, they failed to appear, and default judgments were entered on their appearance bonds.

The addition of new charges to those already made, and the substitution of new indictments for those to which the relators had entered their voluntary appearance, violated no constitutional right of the relators. This necessarily follows from the rule that, even though a person is brought into the jurisdiction of a state by extradition, he may be there tried "for any other offense than that specified in the requisition for his rendition," without violation of any right, privilege, or immunity secured to him by the Constitution and laws of the United States.Lascelles v. Georgia, 148 U.S. 537, 13 S.Ct., 687, 689, 37 L.Ed., 549. The situation in which relators were placed presented a question of ethical policy on the part of the North Carolina courts, but not a question of individual right arising under the Constitution and laws of the United States. State v. McNaspy,58 Kan. 698, 50 Pac., 895, 897, 38 L.R.A., 756. The relators were therefore legally and without violation of any of their constitutional rights within the custody and jurisdiction of the North Carolina court, under the indictments on which they were convicted.

On the facts stated, the relators insist that they are not fugitives from justice in North Carolina, for the reason that they were not in the state when the crime charged against them was committed.

There is no language in the constitutional provision, nor in the statute enacted by Congress, expressly making presence in the demanding state, at the time the crime was committed, essential to the right of extradition. The language of the Constitution (Const. U.S., art. 4, sec. 2) is that the right shall exist with respect to one "who shall flee from Justice, and be found in another State." The statute (18 U.S.C.A., sec. 662) gives effect to that provision by directing that the demand shall be made by the Governor of the state "from whence the person so charged has fled."

"The constitutional provision that a person charged with crime against the laws of a state, and who flees from its justice, must be delivered up on proper demand, is sufficiently comprehensive to embrace any offense, whatever its nature, which the state, consistently with the Constitution and laws of the United States, may have made a crime against its laws." Appleyard v. Massachusetts,203 U.S. 222, 227, 27 S.Ct., 122, 123, 51 L.Ed., 161, 163, 7 Ann. Cas., 1073. "The provision of both the constitution and the statutes extends to all crimes and offenses punishable by the laws of the state where the act is done." Lascelles v.Georgia, supra.

The Supreme Court has not undertaken to limit or restrict the scope and application of the constitutional direction by strict construction. On the contrary, it has declared that "a faithful, vigorous enforcement of that stipulation is vital to the harmony and welfare of the states;" and that it should "be not so narrowly interpreted as to enable offenders against the laws of a state to find a permanent asylum in the territory of another state." Appleyard v. Massachusetts, supra. The constitutional and statutory provisions "have not been construed narrowly and technically by the courts as if they were penal laws, but liberally, to effect their important purpose." Biddinger v.Commissioner of Police, 245 U.S. 128, 133, 38 S.Ct., 41, 43, 62 L.Ed., 193, 198.

In Hyatt v. New York, 188 U.S. 691, 23 S.Ct., 456, 459, 47 L.Ed. 657, interstate extradition was denied on proof that the accused was not in the demanding state when the alleged crime was committed, and it was held that the constructive presence alone of the accused in the demanding state was not enough to authorize his delivery. This ruling was made with respect to one who had never been physically in the custody of the state in which he was charged with crime. The only reason assigned for the ruling was that, having been beyond the limits of the state when the crime was committed, the accused had not "fled" therefrom. The court said:

"How can a person flee from a place that he was not in?"

In this ruling the Supreme Court cited with approval In reMohr (1883), 73 Ala. 503, 49 Am. Rep., 63, wherein the Supreme Court of Alabama qualified and explained its similar ruling, as follows: "Such at least is the rule, unless the criminal afterwards goes into such State and departs from it, thus subjecting himself to the sovereignty of its jurisdiction. The reason is, not that the jurisdiction to try the crime is lacking, but that no one can in any sense be alleged to have `fled' from a State, into the domain of whose territorial jurisdiction he has never been corporally present since the commission of the crime." This excerpt is quoted in full, without exception, in State v.Hall (1894), 115 N.C. 811, 20 S.E. 729, 28 L.R.A., 289, 44 Am. St. Rep., 501.

In Moore on Extradition, vol. 2, p. 949, reference is made to the ruling in 1844 of an inferior court in the State of New York that one Adams, although not in the state when his crime of obtaining goods by false pretenses was committed, became a fugitive from the justice of that state, when he thereafter entered the state and made an engagement with a member of the defrauded firm, but left the state without keeping it. Of this ruling the learned author said: "We are free to admit that we do not perceive any great flaw in the reasoning of the court, restricting it, as it was restricted by the facts of the particular case, to offenses to the commission of which corporeal presence is generally recognized as not essential."

The Supreme Court, in Hyatt v. New York, supra, ruled also that presence for one day in the demanding state, after the date of the crime, for a purpose wholly disconnected with its subject-matter, and months prior to the finding of the indictment, did not render the accused person a fugitive from justice. But no such ruling has ever been made with reference to one accused of crime who, although not in the state when the crime was committed, subsequently entered it and was there taken in physical custody to answer the charge, from which custody he was released only on his undertaking to return upon demand. No such case has been presented to the Supreme Court for its decision.

In a number of the opinions of the Supreme Court, both before and after Hyatt v. New York, the statement is found that presence of the accused in the demanding state at or about the time the crime was committed is essential to the right of extradition. But in each instance in which the expression has been used the case before the court was one in which the accused, claiming absence from the state when the crime was committed, had not been within the jurisdiction of the court in which the charge of crime was pending. The point ruled by the Supreme Court is therefore that a person, of whom the demanding state has not acquired jurisdiction on the pending charge, is not subject to extradition if he was not in the state when the crime was committed. "It is a maxim, not to be disregarded, that general expressions, in every opinion, are to be taken in connection with the case in which those expressions are used. If they go beyond the case, they may be respected, but ought not to control the judgment in a subsequent suit, when the very point is presented for decision." Cohens v. Virginia, 19 U.S. (6 Wheat.), 264, 399, 5 L.Ed. 257, 290.

In the voluminous briefs filed for the relators in this court, no reason is suggested as a predicate for holding that the relators are not fugitives in the constitutional sense, other than the erroneous assumption that the issue is so determined by Hyatt v. New York, supra, and like cases. The only reason assigned by the court for the ruling made in that case, that one cannot be said to have fled from a state when he had not been there, is obviously not applicable to a person who has not only been in the demanding state but in custody of the court having jurisdiction of the crime charged, from which custody he has not been finally discharged. A case not within the reason of a ruling is not within the scope of its application.

As the case appears to us, the relators were corporeally within the legal custody and jurisdiction of the North Carolina court when they were temporarily released on their bond, conditioned that they would return. When they failed to appear and forfeited their bond, they necessarily became fugitives from the justice of that court and state. Such fugitives can be held immune from extradition only by reading into the Constitution and statute of the United States an exception which is neither expressed nor implied.

"When bail is given, the principal is regarded as delivered to the custody of his sureties. Their dominion is a continuance of the original imprisonment." And seizure of the principal by his sureties "is likened to the rearrest by the sheriff of an escaping prisoner." Taylor v. Taintor, 16 Wall. (83 U.S.), 366, 371, 21 L.Ed., 287, 290.

To sustain the contention of the relators would be to solemnly rule that a person, legally imprisoned on a charge or conviction of crime, does not "flee" from the justice of the state when he breaks his prison and escapes into another state, because his crime was committed through the agency of others while he himself was absent from the state. To so rule would not only deny the plain language of the Constitution and statute, but, in the case before us, would enable the relators to unsuccessfully experiment with the courts of North Carolina and flaunt their jurisdiction as futile after an adverse judgment. The Constitution and laws of the United States forbid such result, and we think we are without discretion but to hold the relators subject to the Governor's warrant of arrest and delivery.

In our opinion, the only questions open for consideration in this proceeding are whether the relators are charged with crime in North Carolina and are fugitives from the justice of that state. These were the only questions proper for the Governor to consider in determining whether he should issue his warrant on the demand of the Governor of North Carolina.

This is not a case in which it is sought to enforce a judgment. We have no jurisdiction to enforce the judgment of a sister state, imposing punishment for a violation of its laws. Our jurisdiction is limited to the determination of whether the conditions to extradition prescribed by the Constitution and laws of the United States, the charge of crime and the flight from the demanding state, are satisfied.

If the procedure followed by the State of North Carolina in the trial and conviction of the relators violated any of their constitutional rights, and if there has been no conclusive adverse adjudication of those points, it would nevertheless be our duty, under the Constitution of the United States, to presume that such wrongs will be remedied when and if the relators are restored to the jurisdiction of North Carolina and steps are there taken to enforce the judgments of its courts. We repeat, this proceeding in Tennessee is not a proceeding to enforce the judgment of the North Carolina courts, but is purely incidental thereto, and the only inquiry open here is whether the Governor of Tennessee rightfully concluded that relators, being charged with crime in North Carolina, have fled to Tennessee from the justice of that state.

If, possessing jurisdiction, we should reach the conclusion that proceedings subsequent to the indictment in North Carolina were void, as in conflict with the due process of law clause of the Constitution of the United States, it would still be our duty to sustain the extradition, since such a ruling would leave the indictments undisposed of, and the relators would stand as charged with crime in that state. Therefore we think all such matters can be adjudicated only in courts vested with jurisdiction thereof, after the relators are returned to the jurisdiction of the only state empowered to enforce the judgment of conviction or to otherwise dispose of the charge of crime.

These views follow necessarily from the nature of the proceeding, an application for the writ of habeas corpus to test the validity of the Governor's warrant by the Constitution and statute of the United States, pursuant to which it was issued. Being without jurisdiction to enforce the judgment of North Carolina, the courts of Tennessee are without jurisdiction to inquire into the validity of such judgment as a basis for granting or denying extradition. And, if the relators have been denied due process of law by the courts of North Carolina, with respect to matters not already adjudicated, they should be left free to present such matters to a state or federal court to which the State of North Carolina is subject, whenever that state, having regained custody of them, endeavors to enforce its judgment. The relators will remain under the protection of the Federal Constitution, if returned to North Carolina, and this proceeding for the writ of habeas corpus is a summary proceeding, "to be kept within narrow bounds, not less for the protection of the liberty of the citizen than in the public interest." Biddinger v. Commissioner of Police,245 U.S. 128, 38 S.Ct., 41, 43, 62 L.Ed., 193.

This limitation of the scope of our jurisdiction in this proceeding is clearly indicated by the rulings of the Supreme Court. Munsey v. Clough, 196 U.S. 364, 25 S.Ct., 282, 284, 49 L.Ed., 515; Drew v. Thaw, 235 U.S. 432, 35 S.Ct., 137, 59 L.Ed., 302; Hogan v. O'Neill, 255 U.S. 52, 41 S.Ct., 222, 65 L.Ed., 497.

"The sufficiency of the indictment, as a matter of technical pleading, will not be inquired into on habeas corpus. . . . If it appear that the indictment substantially charges an offense for which the person may be returned to the state for trial, it is enough for this proceeding." Munsey v. Clough,196 U.S. 364, 373, 25 S.Ct., 282, 284, 49 L.Ed., 515.

"In extradition proceedings, even when, as here, a humane opportunity is afforded to test them upon habeas corpus, the purpose of the writ is not to substitute the judgment of another tribunal upon the facts or the law of the matter to be tried. The Constitution says nothing about habeas corpus in this connection, but peremptorily requires that upon proper demand the person charged shall be delivered up to be removed to the state having jurisdiction of the crime." Drew v. Thaw, 235 U.S. 432, 439, 35 S.Ct., 137, 138, 59 L.Ed., 302.

The judgment of the trial court should therefore be affirmed.

In this opinion the CHIEF JUSTICE and MR. JUSTICE COOK concur.