Ex parte Morris

KRUEGER, Judge.

This is an appeal from an order of the Hon. R. M. Carter, Judge of the District Court of the fifteenth Judicial District of Texas, remanding appellant to the custody of Cap Duncan, the designated agent of the State of Oklahoma, to remove him to said state.

The record shows that on the 13th day of March, A. D.,. 1936, the Governor of the State of Texas honored a requisition from the Governor of the State of Oklahoma for the return of the appellant to said state. The Governor of the State of Texas issued his executive warrant and delivered it to Cap Duncan,, the duly designated and authorized agent of the demanding-state, to take appellant into custody and remove him to said state. It seems that the proceedings were regular as no attack is made upon the requisition, the executive warrant, or the: complaint charging appellant with having committed the offense of robbery by the use of firearms, which is a felony under the: laws of the demanding state and for which it is sought to extradite him. Upon being taken into custody by virtue of the-executive warrant, appellant applied to the Hon. R. M. Carter,. Judge of the District Court of the Fifteenth Judicial District of Texas, for a writ of habeas corpus and prayed that upon the hearing thereof he be discharged for the following reasons: first, because he was not in the State of Oklahoma at the time-of the commission of the offense with which he is charged; and second, that he was not a fugitive from justice of the demanding state. The writ of habeas corpus was issued as prayed for, and at the hearing thereof the court heard evidence at the conclusion of which he remanded appellant to the custody of the agent of the demanding state to be conveyed to said state in accordance with the executive warrant. Appellant excepted to the ruling of the court, gave notice of appeal and brought this case to this court for review.

The question as to whether appellant was in the state of Oklahoma at the time of the commission of the alleged offense was a controverted issue which was determined by the trial court adversely to appellant’s contention and his judgment is binding upon this court.

Hence, the only question to be considered is: Was appellant a fugitive from the justice of the demanding state?

The conclusion which we have reached is based upon the following uncontroverted facts: Appellant was convicted in March, 1933, in the District Court of Fannin County, Texas, for the unlawful- transportation of intoxicating liquors, from which judgment he appealed to this court. Pending said appeal he, together with Bill Horne and Malcolm Keene, was charged with murder alleged to have been committed by them, in the County of Choctaw, State of Oklahoma, on October 5, 1933. Appellant and his co-defendants were arrested and placed in jail in Hugo, in said state. Their trial was. set for February 16, 1934, at which time the case against appellant and Horne was dismissed, but he was immediately charged with subornation of perjury and held in confinement. In the meantime this court affirmed the judgment of his conviction in this state. At a subsequent day, when his attorney, who lived at Bonham, Texas, went to Hugo, Oklahoma, to represent the appellant upon his trial there, the sheriff of Fannin County requested the attorney to bring his client (appellant) back to Texas after his case was disposed of in said state.

The record is. silent as to what disposition was made of the case then .pending against appellant in Oklahoma, but the Oklahoma authorities were unwilling to release him and permit him to come to Texas until he had entered into an agreement to return to the State of Oklahoma after he had served the sentence imposed upon him by the courts of Texas. He also waived extradition. This agreement was reduced to writing and signed by appellant, whereupon he was released. Thereafter, on the 26th day of February, 1936, appellant was charged by complaint with having committed the offense of robbery by the use of firearms in the County of Choctaw, State of Oklahoma, on or about the 5th day of October, 1934. After appellant had been released from the penitentiary of the State of Texas he failed to return to the State of Oklahoma. Hence the extradition proceedings were instituted. Therefore, the question is presented: Was he a fugitive from justice within the purview of Section 2 of Article 4 of the Constitution of the United States? He obtained his release from custody of the. demanding state by agreeing to return to that state after he had served his sentence in Texas. He was then in the same situation as if he had been released on his own recognizance. Having waived extradition, his departure from the State of' Oklahoma and his return to Texas was voluntary. He was not. forced to leave Oklahoma and come to Texas; neither was he taken from said state by legal proceedings. Hence, he might have gone where he pleased. Therefore, when he declined to return to said state after he had been released from the penitentiary of the State of Texas, he became a fugitive from justice within the meaning of Section 2 of Article 4 of the Federal Constitution. See State v. Brown, 64 S. W. (2d) 841; Grogan v. Welch, 67 A. L. R., 1474.

In the case of Chase v. State, 113 So., 103, the Supreme Court of Florida said:

“A person charged by indictment or by affidavit before a. magistrate with the commission within a state of crime against its laws, and who after the date of such crime leaves the state, becomes from the time of such leaving a fugitive from justice within the meaning of the federal constitution and laws concerning extradition, no matter for what purpose or with what motive or under what belief he leaves the state and even though at the time of leaving the demanding state he had no belief that he had violated its criminal laws and did not consciously flee from justice in order to avoid prosecution for the crime with which he is charged.”

We are of the opinion that under the state of facts disclosed by this record and the authorities cited in support of the conclusion reached by us, the appellant is a fugitive from justice. Appellant also contends that since the officers of the demanding-state had failed to institute criminal proceedings against him at an earlier date, that they had waived their right to proceed against him and to extradite him. The offense with which appellant was charged was not barred by limitation and whether or not the facts as established at the hearing were sufficient to justify the authorities in delaying the prosecution was a question of fact which the judge determined adversely to the appellant and is binding on this court.

It is therefore ordered that the judgment of the trial court be, and the same is, in all things affirmed.

Affirmed.

The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the Court.