Willard v. Henig

140 N.W. 170, 93 Neb. 298, 1913 Neb. LEXIS 79

Opinions

Barnes* J.

Appeal from a judgment of the district court for Lancaster county denying the relator a writ of habeas corpus.

It appears that on or about the 12th day of June, 1912. one J. P. Bland filed a complaint in due form before Charles Humphrey, a justice of the peace in and for Lenawee county, in the state of Michigan, charging the relator with the crime of embezzlement, which was alleged to have been committed in that county and state on or about the 22d day of May, 1912. Thereupon, the justice of the peace issued his warrant, in due form, for the arrest of the relator, who was charged with the commission of the crime, under the name of William A. Maynard, and who, it is admitted, is the relator. Thereafter, and on the 1.7th day of October, 1912, the governor of the state of Michigan, upon an exhibition of the said complaint and warrant, and upon the affidavits and certificates thereto attached, made his request upon the governor of the state of Nebraska for a warrant of rendition for the delivery of the relator to one Charles E. Henig, who was designated by the governor of the state of Michigan as his agent to receive and take relator into custody and return him to that state to be dealt with according to law. It further appears that on the 9th day of November, 1912, the governor of this state duly honored the above request, and issued his warrant of rendition to the respondent, who thereupon took the relator, who was found in the city of Lincoln, and who had assumed the name of Charles W. Willard, into custody. - To obtain his release, relator brought this proceeding. On the trial in the district court the writ of habeas corpus was denied, and the relator was remanded to the custody of the respondent, and from that judgment the relator has appealed.

It is conceded that bat two questions are presented by the record for our determination: First, is the relator substantially charged with an offense against the laws of the state of Michigan? Second, is he a fugitive from the justice of that state?

Concerning the first of these questions, it ii? not contended that the complaint filed before the justice of the peace in Lenawee county, Michigan, is insufficient in form to charge the relator with the crime of embezzlement. No attack is made upon the form or sufficiency of the warrant issued by the justice of the peace upon that cum plaint, or the warrant of rendition issued by the governor of this state. .It is therefore conceded that the proceedings in those matters were regular and sufficient. The record discloses that they are amply supported by the affidavits, the certificates of the proper officers, and the showing which is contained in the bill of exceptions. It is argued that the writ of habeas corpus should have been granted, and the relator discharged from custody, because the request of the governor of Michigan contains a statement that the relator was wanted for a crime committed in the county of Van Buren, instead of Lena-wee county, in that state. It appears, however, that this statement was merely a clerical error, which in no way affects the validity of the rendition warrant issued by the governor of this state, and under which relator was taken into custody. In State v. Clough, 71 N. H. 594, 605, 67 L. R. A. 946, it was said: “The evidently clerical error in the affidavit of the clerk of court, that the indictment was returned ‘on the second Monday of February, A. D. 1892,’ did not preclude a finding by the governor that the true date was the second Monday of February, 1902. The caption of the indictment, as well as the affidavit of the district attorney, fully authorized that conclusion, which is placed beyond peradventure by an amendment of the clerk’s affidavit in this court. The objection urged on this ground is a refinement of technical reasoning which has nothing to commend it in the modern administration of justice in criminal cases.” It should be observed that in the request for the rendition warrant the governor of the state of Michigan asks that the relator be apprehended and delivered to the respondent, who is authorized to receive and convey him to that state, there to be dealt with according to law; and the rendition warrant issued by the governor of this state authorizes and requires the respondent to take the relator into custody, and return him to the state of Michigan, there to be dealt with according to law. We are therefore of opinion that the relator’s contention upon this point is without merit.

It is conceded that the question as to whether the relator is substantially charged with the commission of a crime is one of law. That question was first presented to the governor of the state of Michigan, who was required to satisfy himself that a crime had been committed in his state. There was also attached to his requisition evidence; of that fact in the copies of the judicial acts on which the warrant for the relator’s arrest was founded. These copies, together with all of the certificates, affidavits and other matters appended to, and made a part of, the request for the rendition warrant are found in the record, duly authenticated, and are sufficient to authorize the issuance of the warrant and to comply with the requisites necessary to authorize the demand as plainly specified in the act of congress, and sections 333 and 364 of the criminal code of this state. The certificates of the executive authority are made conclusive as to their verity when presented to the executive of the state where the fugitive is found. Kentucky v. Dennison, 24 How. (U. S.) 66.

Again, this question was first passed upon by the governor of the state of Michigan, who had before him the record of the judicial acts on which the warrant for. relator’s arrest was issued, and the statute of his state pertaining to and defining the crime of embezzlement. That statute, duly exemplified, appears in evidence in the bill of exceptions. It differs materially from the ordinary statutes of embezzlement found in most of the states. It makes it a crime to convert to one’s own use, not only property and money belonging to another, but also money or property “which is partly the property of another and partly the property of an officer, agent, clerk, servant, attorney at law, collector,” etc. The complaint charges, in substance, that William A. Maynard, in the county of Lenawee, in state of Michigan, being the agent, clerk, servant and employee of John P. Bland, did then and there take into his possession and receive the sum of $98 by virtue of his employment as such agent, clerk, servant and employee, said money being the property of said Jolm P. Bland, and did then and there convert and embezzle said money to his own nse without the consent of the said Bland. The second count of the complaint charges the same, except that Maynard received the money as collector of the said John P. Bland. And the third count contains a like charge, with the exception of the allegation that the money was concealed by the said Maynard with intent to convert the same to his own use. All three counts of the complaint are fully covered by the statute of the state of Michigan above referred to, and each constitutes a crime under the laws of that state. It follows that upon the face of the proceeding the relator is substantially charged with a crime against the laws of the state of Michigan. In order to avoid the effect of this record, and in his attempt to secure his release, the relator set forth in his petition what he alleges to be his contract with the complaining witness, Bland, and testified upon the trial in the district court that Bland was owing him a considerable amount of money as commissions on accounts collected by Bland himself. It is also contended that by the terms of his contract the relator was not required to account for and pay over the money belonging to his principal until after the expiration of one year from the date of his employment. It appears, however, by the terms of the contract that the relator was required to settle with Bland every 90. days; that his first settlement and accounting was due on the 19th day of May, 1912. The record discloses that demand was made upon relator for settlement and payment of the money in his hands; that, instead of making such settlement, he immediately left the county and state of his residence, to which he has never since returned.

Upon this showing it is argued that the relator was not guilty of the crime of embezzlement with which he was charged. It may be conceded that the relator’s act would not constitute the crime of embezzlement in this state; but the provisions of the criminal law of the state of Michigan found in this record are entirely different from the provisions of the criminal laws of this state; and the matters urged by the relator to secure his release do not show or tend to show that he was not substantially charged with a criminal offense. At most, his testimony relates to matters which might be urged as a defense on his trial upon the complaint in question. As we view the record, the governor of this state correctly determined that the matters before him Avere amply sufficient to show that the relator was substantially charged with the commission of a crime against the laws of the state of Michigan.

Finally, it is contended that the relator is not a fugitive from justice. The testimony discloses that the public prosecutor of Lenawee county, in the state of Michigan, was acquainted with the relator personally; that he talked with him a number of times in' the city of Adrian, Michigan, during the months of April and May, 1912; that he knew relator was conducting a collection business there, and was informed and believed that relator upon leaving Adrian came to Lincoln, Nebraska, and engaged in the collection business similar to that conducted at Adrian, under the name of Charles W. Willard. The respondent Henig testified that he made diligent search for the relator, beginning about the 27th day of May, 1912, and continuing to the 17th of October of that year, when he located relator under the name of Charles W. Willard at Lincoln, Nebraska. It appears beyond question that the relator was a resident of the city of Adrian, in the state of Michigan, at the time of the commission of the offense with which he is charged. The testimony discloses that he left that city on or about the 26th day of May, 1912, stating that he Avas going to Buffalo for the purpose of bringing his household goods to Adrian; that, instead of -going to Buffalo, he went to the city of Detroit. He admits that he there assumed the name of Wilson, and gave as a reason therefor that his wife’s people were seeking him in order to procure his arrest for not supporting her. He admitted that he had communicated with his former office but twice, and that within á week after he left Adrian; that he came to Lincoln and established á collection agency under the name of Charles W. Willard. He also testified that he intended to return to Michigan and continue his business there. It appears from the record that prior to his coming to Lincoln the relator was in the city of Grand Island, in this state, where he engaged in a like business; that an officer from that city intervened in this proceeding, and asked that the relator be remanded to his custody to answer to a crime charged to have been committed by him in that city similar to the one with which he is charged in the proceedings contained in this record.

From the testimony contained in the record, the conclusion is irresistible that when the relator left the city of Adrian he never intended to return; that he changed his name when in the city of Detroit, and there assumed the name of Wilson; that he fled from there to the state of Nebraska, and again changed his name to that of Charles W. Willard. After reading the entire record, we are of opinion that the district court of Lancaster county was justified in finding that the relator is a fugitive from the justice of the state of Michigan. Dennison v. Christian, 72 Neb. 703.

The trial judge having correctly resolved both of the questions presented by this record against the relator, and having properly refused to release him by the writ of habeas corpus, the judgment of the district court is

Affirmed.