DocketNumber: 8627
Citation Numbers: 79 S.E. 97, 95 S.C. 315, 1913 S.C. LEXIS 241
Judges: Woods
Filed Date: 7/26/1913
Status: Precedential
Modified Date: 11/14/2024
July 26, 1913. The opinion of the Court was delivered by The petitioner, W.J. Massee, was arrested by sheriff of Spartanburg county under the mandate of his Excellency, Cole. L. Blease, Governor of South Carolina, issued on the 25th day of July, 1912, in accordance with a requisition from his Excellency, Ben W. Hooper, Governor of Tennessee. On the same day, upon the application of Massee, Hon. T.S. Sease, Circuit Judge, issued a writ of habeas corpus returnable in the afternoon of that day. The sheriff made return to the writ, "that W.J. Massee is held in my custody, under telegram from Governor Cole. L. Blease and warrant issued by magistrate A. *Page 317 H. Kirby, charged with making threats and using duress to induce Robert Williams to dismiss an action in United States Court." The record contains this statement of the proceedings before Judge Sease: "Counsel for the petitioner then moved that the petitioner be admitted to bail pending the hearing of the foregoing writ. Counsel for the State objected on the ground that the statutory four days' notice had not been given. This objection was overruled, and his Honor passed the following order admitting Massee to bail, his Honor ruling and holding that appellant was entitled to four days' notice; but that he would admit the petitioner to bail in the meantime." Accordingly, an order was made that Massee be discharged from custody on giving bond in the sum of $10,000, conditioned for his appearance before Judge Sease on the 27th day of July, 1912. The bond was made and Massee was discharged. In the meantime, on the 26th of July, Governor Blease, having received a telegram signed by Governor Hooper stating that the requisition had been signed by mistake and was revoked, requested Judge Sease to continue the hearing until Governor Hooper's telegram could be authenticated under the seal of the State of Tennessee. An order was accordingly made postponing the hearing until the 7th of August, and requiring Massee to appear in person before Judge Sease on the 7th of August at 10:30 in the forenoon, and continuing the bond in force until that time. In passing this order, Judge Sease considered, without objection of counsel, the telegram of Governor Blease to him, the telegram of Governor Hooper to Governor Blease, and a telegram from James B. Cox, Esq., of Knoxville, to Massee stating that Governor Hooper had promised to revoke the requisition.
Massee did not appear on the 7th of August, pleading illness as an excuse, and his counsel presented a paper, purporting to be signed by Massee, waiving his right to be present at the habeas corpus proceedings. Counsel for the State of Tennessee objected to the hearing in the absence of the *Page 318 petitioner on the grounds: "(a) That the bond was conditioned upon the personal appearance of the petitioner, W. J. Massee, before his Honor, and upon the failure of the petitioner, to enter his appearance in person, the condition of the bond was broken; (b) that in a habeas corpus proceeding in which the ex vi termini and as the law directs the body of the petitioner must be brought into Court, the personal appearance of the petitioner was a duty and not a personal right which could be waived." Overruling these objections, Judge Sease proceeded with the hearing, and admitted for his consideration in the matter the telegram from Governor Hooper to Governor Blease purporting to revoke the requisition, the telegram from James B. Cox, Esq., to Massee stating that Governor Hooper had promised to revoke the requisition, and an affidavit of W.D. McNeil to the effect that, in a conversation with him, Governor Hooper gave his reasons for reinstating the requisition and stated that he did not previously sign the requisition.
In overruling the objection to all these documents made on the ground that they were mere hearsay, and that the formal requisition of the governor of a State was not subject to collateral attack in this manner, and that counsel were taken by surprise and had no opportunity to meet the statements of the affidavits of McNeil, Judge Sease held "that as such had been introduced before him and considered by him when he passed the order extending the time for the hearing, they were already in, and would be considered by him, as they were referred to in an order previously passed by him in this matter." Counsel for the prosecution then produced a telegram from Governor Hooper to Governor Blease, dated July 26, 1912, withdrawing the message of the day before purporting to revoke the requisition.
Upon this showing, after argument, Judge Sease made the following findings and judgment: "1. That the requisition is irregular on its face and not in conformity with the act of Congress relating thereto, in that no copy of the indictment *Page 319 found by the Courts of Tennessee as required by law was produced. 2. I find as a matter of fact, that the requisition was not authorized by the Governor of Tennessee, but the same was issued without authority, and is, therefore, null and void. It is, therefore, ordered and adjudged that the prisoner. W.J. Massee, be discharged from the custody of the sheriff and his recognizance cancelled of record and that he be allowed to go hence without delay."
The validity of the requisition from the Governor of Tennessee depends on whether the papers transmitted by him to Governor Blease were made out as required by the Federal statute; and we think that Judge Sease was clearly in error in holding that they were on their face irregular and defective.
The statute provides: "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 affidavit made before a magistrate of any State or Territory charging the person demanded of 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 secure him, 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." Revised Statutes of United States, sec. 5278. The objection sustained was that no copy of the indictment found by the Courts of Tennessee was produced. The record before us shows that the copy of an indictment charging a crime under the laws of the State of Tennessee was attached to the requisition, and certified therein by Governor Hooper to be authentic. The objection that the certificate of the clerk of *Page 320 the Circuit Court stated that the paper purporting to be an indictment was a copy of the minutes of the Court, and not of the indictment, has no foundation. Even under the strictest verbal test, the certificate can bear no other construction than that the indictment appears in the minute book, and that the indictment itself, not the minute book, was on file in the clerk's office. There can be no doubt that the requisition papers were, on their face, regular in every respect.
The assigned error next in sequence is the admission of the petitioner to bail pending the hearing, without notice to the attorneys representing the prosecution. The question made is not now a practical one, for the bail bond was taken and the petitioner released, and it would be impossible for this Court to restore the status existing before the bond was taken. But since the point is important, we may state our views of it. Legislation in respect to extradition of fugitives from one State to another being within the power of Congress, the regulations fixed by Federal statutes are paramount to State Constitutions and statutes, and all that a State Court can do under habeas corpus proceedings is to determine whether the conditions prescribed by the Federal Constitution and statutes have been complied with. If they have not, the Court may release absolutely or on bail, according to its discretion.
The general rule in habeas corpus proceedings is well established that pending a final hearing the Judge or Court may admit to bail. Barth v. Clive,
But under habeas corpus proceedings the Courts may inquire whether the prisoner really falls under the conditions of the Federal statute; that is, whether he is subject to extradition. For example, they may ascertain whether the prisoner is the person charged, whether he is a fugitive from justice, whether the papers show that he was in the demanding State at the time the offense was committed, and whether the act charged was a crime against the laws of the demanding State; but judicial inquiry cannot extend to the motive of the proceedings. The Supreme Court of the United States in Robb v. Connelly,
In Pearce v. Texas,
In Hyatt v. New York,
The Court held in Pettibond v. Nichols,
In Pierce v. Creecy,
These statements of the principle involved, by the tribunal to whose authority, in questions of this kind, all other Courts must yield, have made clear the principle that the authority of the Courts, in extradition proceedings, does not extend to inquiry into the motive, or into the merits of the case in any respect. The Supreme Court of this State and other State Courts of high authority have explicitly laid down the same limitation.
In Ex parte Swearingen,
Another established and obvious principle is that when the extradition papers are regular on their face every intendment is to be indulged in favor of their validity, and the burden is on the prisoner to show that some one of the conditions of extradition prescribed by the statutes, as above indicated, have not been met. Marbles v.Creecy,
Applying these settled rules, it is perfectly clear that the Circuit Judge erred in admitting the prisoner to bail pending the final hearing. When the application was made, the showing before the Judge consisted of the requisition papers of the Governor of Tennessee, and the mandate of the Governor of South Carolina, all made out in accordance with the statute, and the verified petition of the prisoner. This petition contained nothing but statements that he intended to show that, while the prisoner had violated the criminal laws of Tennessee, he was guilty of no moral wrong, that the prosecution was a hardship on him, that it was instituted to collect a debt, and that the Governor of Georgia had refused to issue a requisition. All this had no tendency to show that the extradition statute had not been complied with, and, *Page 325 therefore under the principles just stated and the authorities sustaining it, furnished no ground whatever for the discharge of the prisoner on bail. This being so, the law required that the petitioner should be remanded to the custody of the sheriff to be thereafter surrendered to the State of Tennessee, according to the mandate of the Governor of the State of South Carolina, unless at the future hearing, ordered for 27th of July, a successful attack should be made on the regularity of the proceedings.
It was further contended, on appeal, that the Circuit Judge erred in admitting the petitioner to bail without four days' notice to the counsel representing the prosecution. The State statute provides: "When it appears, from the return of the writ or otherwise, that the party is imprisoned on a criminal accusation, he shall not be discharged until sufficient notice has been given to the Attorney General, or Circuit Solicitor, or other attorney acting for the State, that he may appear and object to such discharge, if he think fit." We are not now concerned with the question whether a Judge may not grant bail in cases of emergency, when the prisoner is entitled to bail, under the Constitution, as a matter of course, the only question, being as to the amount. Here, as we have seen, he was not entitled to bail as a matter of course, but only when a prima facie showing of noncompliance with the requisition statute should be made and in such a case, while the statute does not prescribe the time, its clear import is that counsel shall have sufficient notice to enable them to resist the application for bail. The time is in the discretion of the Circuit Judge; but we think that there is strong reason for the position that it was error of law for the Circuit Judge to grant bail to a prisoner held on extradition proceedings, against the objection of counsel for the prosecution, on a few hours' notice. As the Court is not unanimous however on that point and its decision is not necessary in this case, it is left undecided. We hold that the Circuit Judge was in error when he granted *Page 326 bail, because, on the showing before him, the petitioner was not entitled to bail.
The Circuit Judge erred, also, in admitting as evidence to impeach the requisition of the Governor of Tennessee, solemnly made over his official signature and under the great seal of the State, mere affidavits of outside persons, to the effect that the Governor of Tennessee had told them that he had not signed the requisition. No argument or authority need be adduced to show that such a method of impeaching an official document is not only contrary to the rules of evidence, but would be an intolerable impugning by the judiciary of the most solemn communications between the highest executives of sovereign States.
On the other hand, the Circuit Judge was clearly right in considering the telegram from Governor Blease, and that from Governor Hooper to Governor Blease indicating a withdrawal of the requisition. But even these telegrams were not sufficient authority to warrant the Circuit Judge's holding that the requisition had been revoked. They were of value only as justifying a continuation of the hearing to a future day, so as to give Governor Hooper an opportunity to withdraw his requisition by a formal communication to Governor Blease to that import. Governor Blease expressed accurately the force to be given to them when he requested Judge Sease to continue the habeascorpus proceedings until he could get the substance of the telegrams authenticated under the seal of the State of Tennessee. This was no doubt the view of the Circuit Judge also who had before him, in addition to the documents above referred to, a communication from Governor Hooper to Governor Blease withdrawing the message of revocation, for he does not rest his order of discharge on the ground that the requisition had been withdrawn.
The final question is whether there was error in considering and adjudicating the petition, and discharging the petitioner in his absence. The petitioner did not appear according *Page 327
to the terms of the bond, but submitted a physician's affidavit to the effect that he was too sick to leave his home in the city of Macon. Whether this affidavit was sufficient to warrant a further continuance would have been in the discharged; but the principle is well settled in this State that when an accused person gives bail for his appearance at a future time for the adjudication of the question whether his body shall be held in custody or released, he cannot have his right to discharge adjudicated, unless he is actually in the presence of the Court or in the custody of an officer subject to the Court's order. If he fails to appear without legal excuse, his bail will be forfeited, and his application for the inquiry as to the legality of his arrest and detention will be considered abandoned. If he offers sufficient excuse for not appearing, then the cause must be continued until it is possible for him to appear. Inhabeas corpus proceedings, the whole matter before the judicial officer is whether the accused shall be released or remanded to custody. Unless he is present in person or subject to the order of the Court, it is manifest the Court cannot make effective its judgment against the person. A preliminary hearing demanded by the prisoner falls under the same principle. In considering the point, as applied to a preliminary hearing, the Court said in State v. Rabens,
The judgment of this Court is that the order of Judge Sease be reversed, and that the petitioner be required to appear in person before Judge Sease on a day to be designated by him, and that he then be remanded to the custody of the sheriff of Spartanburg county to be surrendered to the proper officer of the State of Tennessee, unless it shall officially appear that the requisition of the Governor of Tennessee or the mandate of the Governor of the State of South Carolina has been revoked.
Reversed.
Remittitur held up for thirty days to permit appellant toobtain writ of error to United States Supreme Court.
Marbles v. Creecy , 30 S. Ct. 32 ( 1909 )
Hyatt v. People Ex Rel. Corkran , 23 S. Ct. 456 ( 1903 )
In re Foye , 21 Wash. 250 ( 1899 )
Munsey v. Clough , 25 S. Ct. 282 ( 1905 )
Wright v. Henkel , 23 S. Ct. 781 ( 1903 )
Pierce v. Creecy , 28 S. Ct. 714 ( 1908 )
Barranger v. Baum , 103 Ga. 465 ( 1898 )
Pearce v. Texas , 15 S. Ct. 116 ( 1894 )
Robb v. Connolly , 4 S. Ct. 544 ( 1884 )