WEST v. McKeon

113 N.E.2d 45, 232 Ind. 403, 1953 Ind. LEXIS 216

• Court: Indiana Supreme Court
• Decided: June 16, 1953
• Docket: 28,994
• Status: Published

Opinions

Bobbitt, C. J.

This is an appeal from an order in a habeas corpus proceeding discharging appellee who was held in custody under .a warrant issued by the Governor of Indiana.

The application for writ of habeas corpus alleged that plaintiff (appellee) was illegally restrained and requested his discharge. Exceptions were filed to an amended return which alleged that plaintiff was being held in custody pursuant to a warrant issued by the Governor of Indiana and, as a part of said amended return, defendants attached a copy of the following instruments:

1. Appointment of Angelo Bastone as agent of the State of Illinois.

2. Statement by the Governor of Indiana that a warrant had issued for the surrender of Patrick McKeon.

3. Warrant issued by the Governor of Indiana.

4. Request by state’s attorney of Cook County, Illinois, to the Governor of Illinois, that said Governor issue a requisition to the Governor of Indiana for the return of Patrick McKeon.

5. Copy of the indictment charging Patrick Mc-Keon with the crime of conspiracy, certified by the clerk of - the criminal court, Cook County, Illinois, with certificates of Chief Justice and clerk of such criminal court.

6. Capias issued for Patrick McKeon upon the indictment.

7. Copy of the statute under which the crime in the indictment was charged.

To this amended return plaintiff filed his exceptions and as the sole grounds therefor stated:

1. That the requisition by the Governor of the demanding state was not made a part of the return.

2. That the indictment attached to the return was not properly authenticated by the Governor of the demanding state.

Neither the requisition nor the certificate of authentication by the Governor of Illinois was returned as a part of the amended return.

The determinative question here is: Did the failure to make such requisition and certificate a part of the amended return render it insufficient?¹

The statute governing a return to an application for writ of habeas corpus provides:

“The return must be signed and verified by the person making it, who shall state:

“First. The authority or cause of the restraint of the party in his custody.

“Second. If the authority be in writing, he shall return a copy and produce the original on the hearing.”

Section 3-1914, Burns’ 1946 Replacement, Acts 1881, (Spec. Sess.), ch. 38, §787, p. 240.

The authority upon which appellee was restrained was the warrant issued by the Governor of Indiana. Lawrence v. King (1932), 203 Ind. 252, 256, 180 N. E. 1.

In Martin v. Newland, Sheriff (1925), 196 Ind. 58, 62, 147 N. E. 141, it is said, “. . . the statute² required that the sheriff should set out such requisition and warrant as parts of his return, and produce the original in court.”

Section 3-1914, supra, provides that if the authority upon which the person is detained be in writing, a copy shall be filed with the return. As we have said, the governor’s warrant is the authority upon which appellee herein was held and when a copy was filed with the return the requirement of the statute was satisfied.

Insofar as Martin v. Newland, Sheriff, supra, purports to require the setting out of the requisition of the governor of the demanding state as a part of the return to an application for writ of habeas corpus, it is overruled.

The amended return contains a copy of the governor’s warrant.

A demand for the extradition of a person charged with crime in another state must be in writing and accompanied by copy of an indictment found or by an information supported by affidavit in the state having jurisdiction of the crime, or by a copy of any warrant which was issued thereon, and the copy must be authenticated by the executive authority making the demand, which shall be prima facie evidence of its truth. Acts 1935, ch. 49, §3, p. 134, §9-421, Burns’ 1942 Replacement.

A copy of the governor’s warrant filed with the amended return recites that a requisition by the Governor of Illinois directed to the Governor of Indiana and deposited in the office of the Secretary of State of Indiana demanded the arrest of Patrick McKeon and his delivery to Sergeant Angelo Bastone, the agent of the Governor of Illinois; that the requisition was accompanied by a copy of an indictment charging the person so demanded with having committed a crime within the jurisdiction of said state, and that such copy is certified as authentic by the Governor of Illinois.

The warrant is valid on its face and is prima facie evidence of the matters recited therein. This prima facie case could not be overcome by exceptions but must be done by answer. Kemper v. Metzger (1907), 169 Ind. 112, 121, 81 N. E. 663; Hartman v. Aveline (1878), 63 Ind. 344, 349, 30 Am. Rep. 217; Robinson v. Flanders (1867), 29 Ind. 10, 12; Nichols v. Cornelius (1856), 7 Ind. 611, 613.

Since the requisition and certificate of the Governor of Illinois were not a necessary part of appellants’ (defendants’) return herein, and the amended return was sufficient on its face, the trial court erred in sustaining appellee’s (plaintiff’s) exceptions thereto.

Judgment reversed with instructions to overrule appellee’s (plaintiff’s) exceptions and for further proceedings not inconsistent with this opinion.

Judgment reversed.

Gilkison, J. dissents with opinion in which Emmert, J. concurs.

1 . Appellee does not question the sufficiency of appellant’s assignment of errors.

2 . Acts 1881 (Spec. Sess.) ch. 38, §787, p. 240, §3-1914, Burns’ 1946 Replacement.