Ex Parte Coleman , 157 Tex. Crim. 37 ( 1951 )

ON MOTION FOR REHEARING.

MORRISON, Judge.

Appellant has presented us with a most forceful motion for rehearing in which he urges that the application we gave to the Extradition and Support Act in the case at bar constituted an abridgment of appellant’s rights under Section 16, Article 1, of the Texas Constitution, contending that we held the same to have ex post facto effect. In order to clarify the issue, we restate some of the facts. The complaint against appellant filed in California alleged that the offense with which he is charged was committed on January 13, 1951.

The Support Act and the Extradition Act became effective in Texas on June 2 and June 15, 1951, respectively.

The requisition of the Governor of California was dated June 21, 1951.

Appellant cites us a number of cases dealing with ex post facto and retroactive laws, none of which, however, deal with the question of extradition. We have' found no Texas cases on the precise question here presented. We do find, however, almost the identical question decided in the case In re Giacomo, 7 Fed. Cases 366. This case deals with international extradition, but the rules therein expressed, we feel, should apply to interstate extradition. There, Giacomo was charged "with the offense of murder in the Kingdom of Italy, alleged to have been committed on August 29, 1867. An extradition treaty between the United States and Italy was concluded on March 23, 1868. Relator was indicted at Naples March 19, 1869, and brought before a United States Commissioner on a writ of extradition in 1874, where he interposed the same plea of ex post facto as does relator here. The court, in ordering relator extradited, held as follows:

“It is contended, in the present case, that the effect of extradition for a crime committed before the making of the treaty is to punish the party by depriving him of his liberty, and sending him out of the United States, and delivering him up to a foreign authority and to punish him for remaining and being found in the United States, when he could not have been thus punished at the time the treaty was made. But the fact of extradition cannot properly be regarded as ‘punishment’, within the sense of that word, as used when considering the subject of ex post facto law. There is no offence against the United States, and no trial for any such offence, and no punishment for any such offence. It is true, that extradition relates only to criminal offences, but it relates only to criminal offences committed abroad; and no treaty for extradition, nor am/ statute passed in relation to‘extradition, purports to punish the fugitive for the offence. Both treaties and statutes assume that he is to be tried upon the charge, if not already convicted. With the question of punishment, or its kind or degree, they have no concern. They merely declare that the protection of this government shall not be interposed between the fugitive and the laws which he has violated, and that, if he flees hither for such protection, the injured government may take him hence, and shall be aided therein. This government neither assumes nor exercises any power to punish for the crime. The fact that the fugitive is deprived of his liberty does not make such deprivation a punishment. Loss or suffering to the party supposed to be punished is not punishment, in a legal sense, unless the punishment is inflicted as a penalty for the commission of crime. If extradition for an anterior crime is punishment, extradition for a subsequent crime is equally punishment. But, it is an incorrect idea of punishment, to say that the United States, in every case of extradition, is punishing the party for the offense committed abroad by extraditing him. It being assumed that the prisoner committed a murder abroad, and then fled to the United States, and that the treaty was afterwards made, it is not a punishment of the prisoner to deprive him of his liberty, under the treaty, and surrender him to the foreign authority, so as to make the treaty obnoxious to the objection that it is an ex post facto law.” (Italics ours.)

With the reasoning of this opinion, we concur.

Relator contends in his oral argument that, since the trial court based his decision on the Extradition Act as demonstrated by his Bill of Exception No. 3, this court is bound in its consideration of this appeal to Extradition Act alone. This position is untenable.

“The case on appeal will be decided on the theory on which it was prosecuted or defended in the trial court. But a decision will not be reversed merely because it was given for a wrong or an insufficient reason; if the decision in question is correct upon any theory of law applicable to the case, it will be sustained regardless of the reason advanced.” 4 Tex. Juris. Sec. 375, p. 529.

Relator next contends that, since he introduced at the hearing the certificate of the Governor of the demanding state and the accompanying papers for the limited purpose of showing the illegality of the Executive Warrant of the Governor of Texas, the same could not be considered by this court for any other purpose. We remind relator of the fact that we considered these documents on the question of the legality or illegality of the Executive Warrant of the Governor of Texas and concluded such Executive Warrant to be a legal one.

Relator again urges the contention that the Extradition Act, having been passed thirteen days subsequent to the passage of the Support Act, repealed the same. With this contention, we cannot agree and feel that we have sufficiently discussed the same in our original opinion herein.

Remaining convinced that our original holding herein is sound, relator’s motion for rehearing is overruled.