Ex parte Barker , 87 Ala. 4 ( 1888 )

SOMERVILLE, J.

The prisoner was arrested in the State of Georgia, without legal process, and was afterwards handed over by the officers of the law in that State into the custody of one McCain, who acted as agent of the State of Alabama, under a warrant issued by the Governor of the latter State under the inter-state extradition laws of the United States. This was done pursuant to a warrant of the Governor of Georgia. These extradition papers are claimed to have been so defective as to confer no jurisdiction on any of the officers, in whose custody the prisoner has been detained.

The return made to the writ of habeas corpus by the deputy-sheriff of Elmore county shows that the petitioner was detained in his custody, not only under the authority conferred by these papers, but by virtue of a capias issued on an indictment for the offense of grand larceny — the same crime for which he was extradited from the State of Georgia as a fugitive from justice from Alabama.

The proposition contended for by the petitioner’s counsel may be reduced to this: that the petitioner is entitled to be discharged from custody, and should be allowed reasonable time to make good his escape again from this State, because he was illegally arrested in Georgia and brought into Alabama.

This proposition is not sound, and there is an overwhelmring array of authority against it. We may admit that the affidavit, charging the offense upon which the extradition warrant was based, was fatally defective in omitting the word “feloniously” before the words “took and carried away,” which purport to charge the crime of grand larceny, and, for this reason, the affidavit legally charges no crime. And we premise also, that when the affidavit in such cases fails on. its face to state facts which constitute a crime, the defect is jurisdictional, and may be ascertained and declared by the investigating tribunal, on an application for the writ of habeas corpus. — U. S. Bev. Stat., § 5278; Spear on Extradition, pp. 471-472, 477, 498, 548; 7 Amer. & Eng. Encyc. Law, 632, 637; People v. Brady, 56 N. Y. 182.

So, without affecting the merits of this case, it might be admitted for the sake of argument, as contended, that the judge of the County Court of Elmore county had no authority to issue a warrant for the arrest of a person for a felony— although it is obvious that’he is invested by the statute with this authority as a lawful magistrate (Code, 1886, §§ 4255, 4279, 4680); and although “ an affidavit made before any magistrate of a State or Territory,” certified as authentic by the Governor of the demanding State, is obviously sufficient, if otherwise objectionable, under the Federal statute governing the subject of the extradition of fugitives from justice between the States and Territories. — U. S. Bev. Stat. §5278; Hurd on Habeas Corpus (2d Ed.), 610.

It nevertheless is true, that the courts of a State will not generally investigate, either on habeas corpus proceedings, or on final trial, the mode of the prisoner’s capture, whether it was legal or illegal — whether it was under lawful' process or without any process at all — where he has fled to another State or country, and been brought again into its-jurisdiction. The question is the legality of the prisoner’s detention, not the legality of his arrest, unless on the complaint of the Governor of the State whose laws were violated by such unlawful arrest. The person making the arrest may be prosecuted criminally for kidnapping, or be held liable to respond in civil damages for false imprisonment; but the prisoner can not himself claim to be released, from any legal process for the same crime, under authority of which he may be detained in the custody of the law. In other words, the mere fact that the prisoner, being a fugitive from justice, was kidnapped in another State — to put the case strongly- — and was brought into this State, is alone no reason why he should be released, unless the demand for release is made by the Governor, or other executive authority of such foreign State. This is the accepted doctrine of the State and Federal courts, and is founded on an ancient and well settled principle of the common law. — Spear on Extradition, pp. 181, 492, 554; 7 Amer. & Eng. Ency. Law, 643, 653, note; Matter of Felter, 57 Amer. Dec. 400, note, and cases cited; Com. v. Shaw, 6 Crim. Law Mag. (1885), 245.

In Ex parte Scott, 9 Barn. & Cress. 446, a case of habeas corpus, the prisoner, a female, had been arrested at Brussels, without authority of law, and brought back to England. Lord Tenterden refused to inquire into the circumstances of her arrest, whether legal or illegal, upon its being made to appear that an indictment had been found against her in the proper jurisdiction in England, where the investigation occurred, and the crime was alleged to have been committed. It was not denied, that the foreign country, whose laws may have been violated by the illegal arrest, could vindicate their breach by making demand for the prisoner’s return.

In Dow’s case, 18 Penn. St. 37, the prisoner had escaped from justice in Pennsylvania, and fled to Michigan. He was arrested in the latter State, without legal authority, and brought back to the former State, where a prosecution was pending against him for forgery. He was held not to be entitled to his discharge, his release not being demanded by the executive of Michigan.

In State v. Brewster, 7 Vt. 118, where the prisoner had been kidnapped in Canada, and forcibly brought into the State of Vermont, his discharge was refused, and he was held liable to answer an indictment for crime in the latter State.

A like ruling was made in Ker v. People, 110 Ill. 627; s. c., 51 Amer. Rep. 706, in the case of one who had been seized by private persons in Peru, without warrant of law, and was brought to California, and from thence to the State of Illinois by process of extradition. The authorities on the subject are ably reviewed in this case by Scott, J.; and the United States Supreme Court, on appeal to that tribunal, declined to disturb the judgment of the Supreme Court of Illinois.—Ker v. Illinois, 119 U. S. 436. See, also, Spear on Extradition, 181-186; Ker’s case, 18 Fed. Rep. 167.

It is not denied that the crime of grand larceny described in the capias on the indictment against the prisoner, and under which the sheriff claims to detain him, is the same offense as that intended to be charged in the extradition warrant of the Governor. There can be no serious question, under these circumstances, of the legality of the petitioner’s detention under the capias on this indictment, irrespective of all other questions discussed in the briefs of counsel. Fetter's case, 23 N. J. Law, 311; s. c., 57 Amer. Dec. 382; 7 Amer. & Eng. Encyc. Law, 627-628.

The application for the writ of habeas corpus must be denied.