Opinion
14911.
JULY 10, 1944.
Habeas corpus. Before Judge Pomeroy. Fulton superior court. April 20, 1944.
Swift Tyler and W. E. Armistead, for plaintiff.
John A. Boykin, solicitor-general, C. E. Presley, Durwood T. Pye, and E. H. Sheats, for defendants.
1. Where, upon the trial of a habeas-corpus case, it appears that the respondent holds the petitioner in custody under an executive warrant based upon an extradition proceeding, and the warrant is regular on its face, the burden is cast upon the petitioner to show some valid and sufficient reason why the warrant should not be executed. The presumption is that the Governor has complied with the constitution and the law, and this presumption continues until the contrary appears.
2. Whether or not the alleged fugitive from the justice of another State is charged with a crime, is a question of law, and is always open upon the face of the papers to judicial inquiry; but as to such question, the law requires only that the crime be substantially charged as a matter of pleading.
3. While, in passing upon the legal question as to whether a crime against the laws of the demanding State is substantially charged, there may be need for closer scrutiny where the requisition is based upon an affidavit instead of an indictment; yet, if the charge as pleaded is in law sufficient for the purpose of extradition, the same presumptions and incidents will follow, upon grant of the extradition by the Governor, as if the demand had been based upon an indictment.
4. The courts of the asylum State can not, upon a writ of habeas corpus, inquire into the guilt or innocence of the accused.
5. Under the evidence in this case, the judge was authorized to find against the contention of the accused that he was not within the demanding State at the time of the commission of the alleged offense.
6. The judgment remanding the accused to custody was not erroneous for any reason urged.
No. 14911. JULY 10, 1944.
Extradition of Milton B. Ellis was sought by the State of Oklahoma upon an authenticated affidavit, made before a magistrate of that State, charging Ellis with the offense of rape in the second degree. After arrest of the accused upon a warrant issued by the Governor of Georgia, Ellis applied for the writ of habeas corpus. A response was filed, and upon the trial, after the introduction of evidence by both sides, the judge remanded the applicant to custody, and he excepted.
It is said in the brief for the plaintiff in error, that under the statutes of Oklahoma, rape in the second degree is "an act of sexual intercourse" by a male person of the age of eighteen years "with a female, not the wife of the perpetrator, where the female is over the age of sixteen years and under the age of eighteen, and of previous chaste and virtuous character," and is a penitentiary offense; and that these statutes were read before the court and duly considered in reaching judgment.
The affidavit of the prosecutor, father of the female, charged that the offense was committed in Bryan County, Oklahoma, on July 29, 1943, stated the names and ages of the parties to the alleged sexual intercourse; and in other respects followed the language and provisions of such statutory definition of rape in the second degree. There was a similar affidavit by the county attorney.
In addition to the affidavits of the prosecutor and the county attorney as above mentioned, the female made the following informal affidavit, which was introduced at the hearing: "That the facts upon which the complaint is based are as follows: . . I an now 18 years of age, being 17 years of age at the time of the alleged offense, and the said Milton Ellis being over the age of 18 years. I state that I met the said Milton Ellis at a canteen that was being run by a Mr. Tillman and his wife, and that I worked in said canteen on or about the first of July, 1943, and that I met the said Milton Ellis and he asked me for a date, and I accepted and went with him for about two weeks, and that he would come to my father's home and get me in his car and take me to the show in Durant. Oklahoma, and that during said period of time he promised to marry me and persuaded me to have sexual intercourse with him on two occasions, the result of which I am now in a family way and am expecting a baby at any time; that the said Milton Ellis is the father of said child; and I further state that I have not had sexual intercourse with any other person except the said Milton Ellis; that the said Milton Ellis was employed by the Shepard Construction Company, and that he came to me and told me that the doctor had told him there was something wrong with his eyes, and he left immediately thereafter, and is now in the State of Georgia, as I am informed. That your affiant makes this affidavit in support of the application for extradition of the said Milton Ellis from the State of Georgia in order that he may be tried in Bryan County, Oklahoma, on a charge of rape in the second degree, as set forth in the complaint signed and filed therein, a warrant having been issued thereon for the said Milton Ellis." There was no other evidence relating to the character of the female.
The applicant testified that he is a native Georgian, was sent to Bryan County, Oklahoma, by his employer, a contracting company, in June, 1943, but could not get a place to board and returned to Georgia the latter part of June; on being assured by his employer that he would be furnished with living quarters if he would return to Bryan County, Oklahoma, he "did go back during the latter part of July, 1943," but he was not furnished living quarters, and came back to Georgia the early part of August, and "was not in Bryan County, Oklahoma, during the first two weeks of July, 1943." He also testified, among other things, that he had never had any conversation with the female named, had never had intercourse with her, and did not even know her. Another witness testified that he lived in Bryan County, Oklahoma; that the accused boarded at his house there during the latter part of July, 1943, that he paid his board about the last Sunday in July, and left the witness's house about the first of August.
There is no insistence that the requisition and exhibits as presented to the Governor of Georgia were not in proper form or were not prima facie sufficient to authorize the Governor to issue his rendition warrant; but it is insisted that on the hearing of the application for habeas corpus, it was a judicial question as to whether the "supporting affidavits" were sufficient to make out the charge on which the requisition was based, there being no indictment; that the evidence in the habeas-corpus case not only failed to show that the female was "of previous chaste and virtuous character," but affirmatively showed that she was not; and showed also that the applicant, as he insisted, was not in the State of Oklahoma at the time of the alleged offense.
In a supplemental brief for the plaintiff in error, his contentions were summed up as follows: "Sole questions involved are two. The first being, did the supporting evidence make out the offense charged under the law of Oklahoma? And was there sufficient proof of the presence of the alleged fugitive in the State of Oklahoma and in Bryan County at the time the alleged offense was committed?"
The United States constitution provides for extradition of a person charged with treason, felony, or other crime, who shall flee from justice, and be found in another State. Code, § 1-403. Under the Federal statute, the demanding State is required to produce as evidence of the "charge" only an authenticated copy either of an indictment found or of "an affidavit made before a magistrate," charging the person demanded with having committed the crime. U.S. Rev. Sts., § 5278, 18 U.S.C.A., § 662. The Code of Georgia provides: "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." § 44-302.
Counsel for the plaintiff in error correctly assert that in cases involving extradition, it is a question of law open to judicial inquiry on habeas corpus, as to whether the person demanded was substantially charged with a crime against the laws of the demanding State. Barranger v. Baum, 103 Ga. 465 (5) ( 30 S.E. 524, 68 Am. St. R. 113); Roberts v. Reilly, 116 U.S. 80 ( 6 Sup. Ct. 291, 29 L. ed. 644); Hyatt v. Corkran, 188 U.S. 691 ( 23 Sup. Ct. 456, 47 L. ed. 657). But the rule as thus stated applies to the sufficiency of the indictment or affidavit as a pleading, and not to extraneous evidence as to actual guilt. In each of the cases cited, it was stated that such question "is always open upon the face of the papers" to judicial inquiry, on an application for the writ of habeas corpus. As stated above, counsel for the plaintiff in error concede that, as a matter of pleading, the authenticated copy of the affidavit of the prosecutor, on which the requisition was based, sufficiently charged the offense; but they insist that the evidence on the trial of the habeas-corpus case was not sufficient to make out the offense charged under the law of Oklahoma. While, in passing upon the legal question as to whether a crime against the laws of the demanding State is sufficiently charged, there may be need for closer scrutiny where the requisition is based upon an affidavit instead of an indictment, yet if the charge as pleaded is in law sufficient for the purpose of extradition, the same presumptions and incidents will follow, upon grant of the extradition by the Governor, as if the demand had been based upon an indictment. The statute makes no distinction in this respect.
In Compton v. Alabama, 214 U.S. 1 ( 29 Sup. Ct. 605, 53 L.ed. 885, 16 Ann. Cas. 1098), where the demand was based upon an affidavit made before a magistrate, it was said: "When it appears, as it does here, that the affidavit in question was regarded by the executive authority of the respective States concerned as a sufficient basis, in law, for their acting — the one in making a requisition, the other in issuing a warrant for the arrest of the alleged fugitive — the judiciary should not interfere, on habeas corpus, and discharge the accused, upon technical grounds, unless it be clear that what was done was in plain contravention of law." In Blackwell v. Jennings, 128 Ga. 264 (2) ( 57 S.E. 484), it was ruled: "When, in the trial of a habeas-corpus case, it appears that the respondent holds the petitioner in custody under an executive warrant based upon an extradition proceeding, and the warrant is regular on its face, the burden is cast upon the petitioner to show some valid and sufficient reason why the warrant should not be executed. The presumption is that the Governor has complied with the constitution and the law, and this presumption continues until the contrary appears."
The courts of the asylum State can not, upon a writ of habeas corpus, inquire into the guilt or innocence of the accused. Dawson v. Smith, 150 Ga. 352 (2) ( 103 S.E. 847); Hart v. Mount, 196 Ga. 452, 454 ( 26 S.E.2d 453). It follows that, even though the evidence upon the habeas-corpus trial may have been entirely silent as to "previous chaste and virtuous character" of the female, this fact would afford no valid reason for releasing the accused. Nor is there any merit in the contention that the informal affidavit of the female, explaining the circumstances (as quoted in the statement), showed affirmatively that she was not, before the alleged rape, a female of chaste and virtuous character.
While the applicant could urge, as a ground for his release, that as a matter of fact he was not within the State of Oklahoma at the time of the commission of the alleged offense, the evidence authorized, even if it did not demand, the finding against him upon such issue. See Dawson v. Smith, 150 Ga. 350 ( 103 S.E. 846).
The court did not err in remanding the applicant to custody.
Judgment affirmed. All the Justices concur.