Ex parte Moscato , 44 S.C. 335 ( 1895 )

The opinion of the court was delivered by

Me. Justice Gaey.

Toney Moscato, the appellant, by petition applied to Hon. Ernest Gary, then presiding as Circuit Judge in Charleston County, for a writ of habeas corpus, alleging that he was imprisoned and restrained of his liberty by Charles J. Wade, and that the cause of his detention was not known to him. The writ was granted, and the return of Charles J. Wade set forth: “That he holds the said prisoner by reason and virtue of the mandate of his excellency the governor of the State of South Carolina, issued in pursuance of a requisition from the governor of the State of New York, whereby it is commanded that the said fugitive, Toney Moscato, be delivered to Charles J. Wade, who is authorized to receive and carry him to the State of New York for trial, in accordance with the laws in such case made and provided. To which said requisition here produced he craves reference.” Toney Moscato then presented the following reasons for his discharge: “And the said Toney Moscato in his own proper person cometh into court here, and having heard the return to the writ of habeas corpus read, sayeth: 1. That he ought to be discharged from his imprisonment because, he says, that he is advised that the warrant annexed to said return and made part thereof is not sufficient in law, in this: that it does not recite that the governor of the demanding State either produced or caused to be produced a copy of an indictment found nor an affidavit made before a magistrate of a State, showing that the person demanded is charged with having committed the alleged crime in the State of New York, nor that a copy of such indictment or affidavit was certified as authentic by the governor of the State making the demand. Nor is there any evidence before the court, save the said warrant and the return, and this he is ready to verify.” The mandate referred to in the return of Charles J. Wade recites: “Whereas a requisition has this day been received from his excellency the governor of New York for the rendition of Toney Moscato, who stands charged with a crime of grand larceny in the second degree, in said State, and who has escaped therefrom and taken refuge in the State of South Carolina.”

Upon hearing the return to the writ and the traverse thereto, the presiding judge made an order remanding the prisoner to the custody of the agent of the State of New York, from which order the prisoner appealed to this court. An order was thereupon made by the presiding judge staying the execution of the order pending said appeal. Appellant’s exceptions are: 1. That the warrant set out in the return herein is insufficient in law, the same not being in compliance with the Constitution and laws of the United States and of this State. 2. Because no proper requisition was made by the governor oí New York on the governor of this State.

1 2 These exceptions fail to point out the specific errors complained of, and are too general for consideration by this court. But even if the exceptions were sufficient to raise the objection to the proceedings urged by the prisoner upon the hearing before the Circuit Judge, they could not be sustained. The objection there urged was, that the mandate was not sufficient in law, in that it failed to recite certain requirements of the act of congress of 1793, contained in section 5278, Rev. Stat. U. S. It was not contended that the requirements had not been complied with, except that they were not recited in the mandate. There is no provision of law requiring such recital. In the case of Ex parte Swearingen, 13 S. C., p. 83, the court says-: “Another ground taken is, that even if the requisition from the governor of Georgia be, in every respect, in conformity with law, yet the mandate issued by the governor of this State was insufficient to authorize the arrest of the petitioner, inasmuch as it does not, in express terms, order the arrest of the prisoner, but only directs that he be delivered to the agent of the State of Georgia. We do not think it at all important to inquire whether the mandate was sufficient to authorize the arrest of the petitioner. The petitioner claims that he is illegally detained in the custody of the sheriff, and the only question before us is, not as to the legality of.his arrest, but as to the legality of his detention, and the cause shown for that is the mandate of the governor of this State, issued in pursuance of a requisition from the governor of Georgia. If that requisition is in conformity to the provisions of the act of congress, as we have already ascertained it to be, the mandate of the governor of this State, to deliver the prisoner to the agent of the State of Georgia, necessarily follows, and it matters not in this inquiry how the sheriff originally acquired the custody of the prisoner. Dow’s Case, 18 Penn. St., 37. When he is brought before us, the return shows that he is now in custody by lawful warrant, for a lawful purpose.”

It is the judgment of this court, that the order appealed from be affirmed.