Kelly v. Mangum

Lumpkin, J.

(After stating the foregoing facts.)

The allegation of mistaken identity was not urged. It was not denied that the plaintiff in error was a fugitive from justice from the State of Missouri. But it was contended, that, as he was brought from Alabama to Georgia by a deputy marshal, under a commitment of a United States district court of Alabama, and placed in the United States penitentiary to serve a sentence for a crime of which he had been convicted, he did not flee into the State of Georgia, and could not be held under a warrant in this State for the purpose of extradition to Missouri.

Section 2 of Article iv of the constitution of the United States contains the following provision: “A person charged in any State with treason, felony, or other crime, who shall flee from justice and be found in another State, shall, on demand of the executive authority of the State from which he fled, be delivered up, to be removed to the State having jurisdiction of the crime.” Section 3278 of the Revised Statutes of the United States is as follows: “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 an 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 as authentic 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,” etc. The question in this case is substantially controlled by the decision in Innes ¶. Tobin, 240 U. S. 127 (36 Sup. Ct. 290, 60 L. ed. ). If the constitutional provision is not self-executing, and if State legislation be necessary to supplement the statute of the United States, on the theory that the act of Congress is not as broad as the power granted by the constitution, and there is an unoccupied field for State action, then the legislation in this State is sufficient to provide for such a case as the present one. By the Penal Code (1910), § 1352, it is declared: “Whenever there is found, within this State, a fugitive from justice from a foreign State, and by the treaty stipulations of the United States such person is to he surrendered up to the authorities of such foreign State upon requisition from the proper officers, the Governor, hy his warrant, shall cause him to be arrested and delivered over to' such officer.” By section 1353 it is declared: “It is the duty of the Governor, under his warrant, to cause to be arrested, and delivered up to the proper officers of any other State of the United States, any fugitive from justice from said State, upon demand made of him by the Executive of such other State in the manner prescribed by the laws and constitution of the United States. And if such fugitive shall have assumed another name in this State, and the Governor is satisfied, by evidence under oath filed in his office, of the identity of such person with the fugitive demanded, he shall state the fact in his warrant for the arrest.” Thus, as to the former case, the language employed is that “Whenever there is found, within this State, a fugitive from justice from a foreign State,” etc. And in the latter case the language is that “It is the duty of the Governor . . to cause to he arrested, and delivered up to the proper officers of any other State of the United States, any fugitive from justice from said State,” etc. In neither section does the language limit the arrest and rendition to one who voluntarily comes within this State. If the case of one who voluntarily flees into the State is covered hy the section of the Revised Statutes of the United States, but that section is construed as not sufficiently broad to provide for a case where a fugitive from another State does not voluntarily come into this State but is brought here from a third State by an officer, and later released after serving a term in the penitentiary, and if that contingency is left to be provided for by State legislation, Penal Code § 1353 is sufficiently extensive to leave no gap for the fugitive to escape on that ground. See also Roberts v. Reilly, 116 U. S. 80 (6 Sup. Ct. 291, 116 L. ed. 544); Appleyard v. Massachusetts, 203 U. S. 222 (27 Sup. Ct. 122, 51 L. ed. 161, 7 Ann. Cas. 1073); State ex rel. Burner v. Richter, 37 Minn. 436 (35 N. W. 9); People v. Benham, 128 N. Y. Supp. 610 (71 Misc. 345); Ex parte Innes (Tex. Cr. App.), 173 S. W. 291.

Judgment affirmed.

All the Justices concur.