Ex parte Dickson ( 1902 )

Gill, C. J.

In the above-entitled case I dissent from the opinion of the court, and from its conclusion.

The first specification of error says that, because no authenticated copy of the indictment charging the appellant with murder in the first degree was annexed to the requisition, the court erred in not discharging the petitioner. And the second specification says that the court erred in holding that the certificate of the governor of Arkansas was a sufficient authentication of the pajoer annexed to the requisition.

Section 5278 of the Revised Statutes of the United States is as follows: “Sec. 5278: Whenever the executive authority of any state or territory demands any .person as a fugitive from justice of the executive authority of any state or territory to which such person has fled, and produces a copy of the indictment found, or an affidavit made before a magistrate of any state or territory charging the person demanded with having committed treason, felony or other crime, certified by or authenticated by the governor or chief magistrate of the state or territory from whence the person so charged has fled, it shall be the duty of the executive authority of the state or territory to which such person has fled to cause him to be arrested and secured, and to cause notice of the arrest to be given to the executive authority making such demand, or to the agent of such authority appointed to receive the fugitive, and to cause the fugitive to be delivered to such agent when he shall appear.” An analysis of section 5278 shows: First, that, when the executive authority of any state or territory demands any person as a fugitive from justice of the executive authority of any state or territory to which such person lias fled, he must, second, produce a copy of the indictment found, or an affidavit made before the magistrate of such demanding state or territory, which, third, must charge the person demanded with having committed treason, felony or other crime, and which, fourth, must be certified .as authentic by the demanding governor or chief magistrate of the state or territory whence the person so charged has fled, and, fifth, it shall then be the duty of the executive authority of the state or territory to -which such person has fled to cause him to be arrested and secured, and to cause notice of the arrest to be given to the executive authority making demand, or the agent of such authority, and, sixth, to cause the fugitive to be delivered to the agent of such executive authority when he shall appear.

The demand is, in words and figures, as follows:

“State of Arkansas, Executive Department. The Governor of the State of Arkansas. To His Excellency, the Judge of the U. S. Court for the Northern District, Ind. Ter.: -Whereas, it appears by the annexed papers, which I certify to be authentic and duly authenticated in accordance with the laws of this state, that John Dickinson stands charged by indictment with the crime of murder in the first degree, committed in the county of Calhoun, in this state, which I certify to be a crime under the laws of this state, and that he has fled from this state, and is a fugitive from the justice thereof, and it is believed such fugitive has taken refuge in the Indian Territory: Now, therefore, I, Daniel W. Jones, governor, of the state of -Arkansas, .pursuant to the provisions of the constitution and laws of the United States do herebjr make requisition for the apprehension of the said fugitive, and for his delivery to W. H. Furlow, who is hereby authorized to receive and convey him to the state of Arkansas, here to be dealt with according to law. In testimony whereof, I have hereunto set my hand and caused to be affixed the great seal of the state of Arkansas. Done at Little Rock this 20th day of October in the year of our Lord one thousand eight hundred and ninety-nine, of the Independence of the United States the one hundred and twenty-fourth, and of this state the sixty-fourth. Dan’l. W. Jones, Governor. Alex. C. Hull, Secretary of State. By the Governor, by E. R. Jett, Deputy Secretary. (Seal.)

Accompanying this demand is the following paper:

“In Calhoun County Court. The State of Arkansas vs John Dickinson, Defendant. The grand jury of Calhoun County, in the name of and bjr the authority of the state of Arkansas, accuse John Dickinson of the crime of accessory before the fact of murder, committed as follows, to wit: That one Wiley Brown on the 2nd day of July, 1895, in Calhoun county, Arkansas, did unlawfully, feloniously, wilfully, with malice aforethought, and with premeditation and deliberation, assault, kill, and murder one Allen Martin by shooting him with a gun, with intent to kill and murder the said Allen Martin then and there; that the said John Dickinson, before the said murder as aforesaid was committed, — that is to say, on the 2nd day of July, 1895,— in Calhoun County, Arkansas, did unlawfully, feloniously, wickedly, willfully, with malice aforethought, and with premeditation and deliberation knowingly advise, incite, encourage, aid and abet the said Wiley Brown the said murder as above described to commit and do, against the peace and dignity of the state of Arkansas. H. P. Laird.”

It will be noticed that there is no certified copy of the indictment attached to the demand but it appears in the demand itself that the annexed papers (that is, the foregoing paper or indictment) are certified by the governor of the state to be authentic, and he further certifies that they are duly authenticated in accordance with the laws of Arkansas. It will also be noticed that the indictment itself is signed by one H. P. Laird, without further designation of who said Laird is. But the following notes appear upon the indictment:

“No. 217 (A301). The State of Arkansas vs John Dickinson. Indictment before the Fact of Murder. A true bill. J. D. Hanna, Foreman.

“Filed in open court in the presence of all the grand jury on this 16th day of July 1896. T. N. Means, Clerk. (Call Geo. W. Dickinson. T. N. Means.) ”

Indorsed as follows:

“Filed 11-4- 99. By N. C. Young, I). C. J. A. Winston, Clerk.”

The question as to whether or not this was a copy of the indictment, within the sense of the law, was specifically presented to the honorable .trial judge, who held that the governor certified to the indictment which seemed to be the original indictment, and stated that that was sufficient authentication. The United States statute, it will be seen by the foregoing analysis, requires that a copy of an indictment charging the person demanded shall be certified by the governor of the demanding state as authentic. Shall it then be said that the original .ndictment, which is a part of the record to be retained in the office of the clerk of the court where the indictment is found, and concerning which the governor of the state can know nothing, ordinarily, except as the same is certified by the clerk, shall serve the same purpose as an authenticated copy, where the demanding governor certifies the same to be authentic and to be duly authenticated? The indictment in this case appears to be signed by one H. P. Laird, but who he is or -what he is does not appear. Presumably, he was the prosecuting attorney. The indictment seems to bear upon its back the legal indorsement as to its being a true bill, to be signed by the foreman, and filed in open court in the presence of the grand jury by the clerk of the court. The demanding governor does not certify that it is the original indictment; nor does he, or anybody else, certify that it is a copy of the original indictment. It is not intended by the statute that the demanding governor shall send with his demand the original indictment itself, but it is intended by ,the statute that the demanding governor shall send with his demand an authenticated copy of the indictment. In the case at bar there is nothing to show whether this is the original or a copy; nor is there any further authentication of the paper than the words of the governor, “Whereas, it appears by the annexed papers, which 1 certify to be authentic and duly authenticated in accordance with the laws of this state.” There certainly is no authentication of the only paper that appears with the demand, and the governor states that at the time he issued the demand the paper before him, on which the demand was made, was duty authenticated. How was the trial court to know, or how is this court to know, that the paper bearing the heading of the “State of Arkansas vs John Dickinson, Defendant,” was the paper presented to the governor of the state of Arkansas? I may presume that it was the paper, but certainly there is nothing on the paper to show that the governor of Arkansas ever saw it, and, unless the demand is accompanied by a copy of the indictment found, there is no authority vested in the magistrate upon whom the demand is made to honor the demand; and for this reason I am inclined to think that the honorable trial judge erred in not remanding the prisoner until the proper papers could be secured.

It is my opinion that the judgment of the sitting magistrate should be so modified as to require an authenticated copy of the indictment to accompany the demand of the demanding governor in this case.