Ex Parte Cheatham ( 1906 )

I do not agree with the opinion of the majority of the court. An inspection of this record shows that every legal requisite necessary was complied with prior to the granting of the executive warrant by the Governor of this State, and the executive warrant is in proper form.

Appellant's bill of exception makes it appear that the following affidavit (or complaint and information) was filed in a court of competent jurisdiction in the State of Colorado; and this is the affidavit upon which the Governor predicated his warrant:

"State of Colorado, El Paso County.

The complaint and information of David McKee, made before W.N. Ruby, Esq., one of the justices of the peace in and for said county, on the 10th day of February, A.D., 1906, who, being duly sworn, on oath, says: that Henry Denning and Mrs. Parlee Denning, on the 9th day of January, A.D., 1906, in said county, being then by virtue of such agency, receive and take into their possession from him, the said McKee, then and there by the said McKee delivered and there the agents of the said David McKee, did then and there, to them, the said Henry and Parlee Denning as such agents, one certain warranty deed executed by one James McAdams, and conveying title to real estate to the said McKee, and one certain quit-claim deed executed by the said Henry Denning and conveying the said real estate to said David McKee, each of said deeds being then and there of the value of $5,000, and the property of the said McKee, and so received for and in the name and on account of the said McKee, and afterward did then and there fraudulently and feloniously embezzle the same and fraudulently and feloniously convert the same to their own use and the same secrete with intent to embezzle; and so the said Henry and Parlee Denning did then and there in manner and form aforesaid, the said warranty deed and the said quit-claim deed, the property of the said David McKee, their principal and employer, from the said David McKee feloniously steal, take and carry away, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the People of the State of Colorado.

He therefore prays that the said Henry Denning and Mrs. Parlee Denning may be arrested and dealt with according to law.

David McKee.

Sworn to and subscribed before me, this 10th day of February, A.D., 1906.

W.N. Ruby, (seal) Justice of the Peace.

State of Colorado, County of El Paso.

I, W.N. Ruby, justice of the peace, within and for the county of El Paso and State of Colorado, do hereby certify that the foregoing is a true and correct copy of the complaint filed in my office on the 10th day of February, 1906, in the suit wherein the People of the State of Colorado are plaintiff and Henry Denning and Mrs. Parlee Denning are defendants. Witness my hand this 23rd day of March, 1906.

W.N. Ruby, (seal) Justice of the Peace.

Endosed: Criminal Complaint.

The People of the State of Colorado v. Henry Denning and Mrs. Parlee Denning. Complaint of David McKee made and filed in my office, this 10th day of February, A.D., 1906. W.N. Ruby, justice of the peace."

A casual inspection of this affidavit shows it charges relator with a criminal offense in the State of Colorado. The majority opinion says: "We may concede that the deeds in question were property and the subject of larceny or embezzlement."

Subsequent to the filing of this complaint Robert L. Hubbard, an attorney representing McKee (the party from whom the deeds were stolen) filed an affidavit before the Governor of the State of Colorado (which affidavit is quoted in the opinion of the majority), in which affidavit it appears that above affidavit of McKee had been previously filed, charging relator with the crime stated. The affidavit of the attorney was merely filed in order to give the governor official notification of the fact that relator was a fugitive from the jurisdiction of the State of Colorado, and was in the State of Texas, and asked the governor for a requisition upon the Governor of Texas for the arrest of the relator. The affidavit of Hubbard is not a "certified copy" of any record from the State of Colorado, and appears to be an original affidavit, and not filed in any court or before any justice of the peace. It is not an affidavit charging a criminal offense, as is the affidavit of McKee. The affidavit of McKee shows it was endorsed a "criminal complaint," and filed by the justice of the peace in the case of "the People of the State of Colorado v. Henry Denning and Mrs. Parlee Denning." The affidavit of Hubbard was evidently presented to the Governor of Texas to evidence the fact that Mrs. Parlee Denning was a fugitive from justice, and this fact was necessary to be established to the Governor of Texas before the executive warrant could issue.

It will be noted that the majority opinion does not set out the complaint of McKee, but the opinion is based upon the affidavit of Hubbard, and that relator should be discharged because that affidavit does not charge an offense. This affidavit was merely filed with the Governor of Colorado as a predicate for the issuance of the requisition.

For ought that is shown by the bill of exceptions of relator, the affidavit of McKee was accompanied by a certificate, duly authenticating it as required by the Federal Statute. Relator merely introduced part of the papers, and we must presume that the Governor of Texas acted within the legitimate scope of his authority. We cannot take a bill of exceptions prepared by relator as conclusive proof that there was no certificate on the complaint of McKee introduced and copied above. If there was such a certificate, and such presumption will be indulged, every statutory prerequisite has been complied with in the granting of this requisition, and the judgment of the lower court remanding relator to custody, to be delivered to the proper officer from Colorado, should be affirmed.