Opinion
No. 30934
Decided April 23, 1947.
Criminal law — Extradition — Presence in demanding state at time crime committed and fugitive therefrom, necessary — Section 662, Title 18, U.S. Code — Section 2, Article IV, U.S. Constitution — Such presence in demanding state and fugitive therefrom, not necessary — Section 109-6, General Code, constitutional — Additional powers to extradite reserved in the state.
1. In order to invoke the aid of Section 662, Title 18, U.S. Code, the person sought to be extradited thereunder must have been in the demanding state at the time of his participation in a criminal act therein and must have become a fugitive from justice of that state by fleeing therefrom.
2. Section 109-6, General Code, which authorizes the granting of a demand of a sister state for the extradition of a person from the state of Ohio, charged in such sister state with having committed an act in Ohio or a third state resulting in a crime in the demanding state, even though the person was not in the demanding state at the time of the commission of such crime and has not fled therefrom, is not in conflict with Section 2, Article IV of the U.S. Constitution, and the enactment of such statute was clearly within the reserved powers of the state.
IN HABEAS CORPUS.
This is a proceeding on a petition for a writ of habeas corpus instituted in this court by the petitioner, Thomas English, who was arrested by the sheriff of Cuyahoga county upon a warrant of extradition issued to the sheriff by the Governor of Ohio on January 10, 1947. The warrant recites that it was issued upon the requisition of the Governor of Pennsylvania for the petitioner who is an "alleged fugitive from justice of said state of Pennsylvania, charged with the crime of 'accessory before the fact to robbery, and robbery.' "
Attached to the application for requisition is a copy of an indictment returned in Westmoreland county; Pennsylvania, which declares that on and about November 6, 1946, three men, Joseph Girard, Jr., Dallas Uhlman and Mike Troychek, robbed with an offensive weapon Vincent De Carlo at Monessen, Pennsylvania, and took from him the sum of $10,143 in cash; and that Thomas English "at the city of Cleveland, state of Ohio, did give, lend and furnish a certain deadly and offensive weapon * * * to one Joseph Girard, Jr., well knowing at the time that the said weapon was to be used by the said Joseph Girard, Jr., and others, in a hold-up and robbery" at Monessen, Pennsylvania.
Also attached to the application for requisition is an indictment returned in Westmoreland county, Pennsylvania, charging English with being a principal in such robbery.
The petitioner claims that he is illegally deprived of his liberty for the reasons that he is not a fugitive from justice; that the warrant of the Governor is insufficient; and that the Pennsylvania indictments are insufficient and do not charge him with any offense.
Mr. Louis Fernberg and Mr. Myron Stanford, for petitioner.
Mr. Frank T. Cullitan, prosecuting attorney, and Miss Gertrude M. Bauer, for respondent sheriff.
The petitioner claims that since the Pennsylvania indictments charge him with having committed the offenses in Pennsylvania while he was in the city of Cleveland, he is not a fugitive from justice of the state of Pennsylvania and, therefore, is not subject to extradition to that state. In this claim the petitioner relies on the provisions of Section 2, Article-IV of the Constitution of the United States, which reads in part as follows:
"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."
That constitutional provision is supplemented by a congressional enactment known as Section 662, Title 18, U.S. Code, the pertinent parts of which are 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. * * *"
Since the petitioner was not in the state of Pennsylvania when the offense was there committed and did not flee from the state of Pennsylvania, this court is of the opinion that the provisions of the U.S. Constitution and laws enacted pursuant thereto, while all-inclusive and exclusive in the field of extradition where there is actual flight from the state wherein an offense is committed, have no application to the case of the petitioner because he was not a fugitive from justice as defined by the U.S. Constitution. See Wilcox v. Nolze, 34 Ohio St. 520; Hyatt v. People of the State of New York, ex rel. Corkran, 188 U.S. 691, 47 L.Ed., 657, 23 S.Ct., 456; People of the State of Illinois, ex rel. McNichols, v. Pease, Sheriff, 207 U.S. 100, 52 L.Ed., 121, 28 S.Ct., 58; Pierce v. Creecy, Chief of Police, 210 U.S. 387, 52 L.Ed., 1113, 28 S. Ct., 714.
But the respondent Sheriff claims that Section 109-6, General Code, applies, and that the petitioner may be extradited under it.
Section 109-6, General Code, reads as follows:
"The Governor of this state may also surrender, on demand of the executive authority of any other state, any person in this state charged in such other state in the manner provided in section 3 [Section 109-3, General Code] with committing an act in this state, or in a third state, intentionally resulting in a crime in the state whose executive authority is making the demand, and the provisions of this act not otherwise inconsistent, shall apply to such cases, even though the accused was not in that state at the time of the commission of the crime, and has not fled therefrom." (Italics supplied.)
Petitioner claims that Section 109-6, General Code, is unconstitutional because it is in conflict with Section 2, Article IV of the United States Constitution, and Section 662, Title 18, U.S. Code, above quoted, on the theory that the federal enactments cover the entire field of extradition, and petitioner cites in support of his contention Prigg v. Pennsylvania, 41 U.S. 539, 10 L.Ed., 1060; Hyatt v. People of the State of New York, ex rel. Corkran, supra; People of the State of Illinois, ex rel. McNichols, v. Pease, Sheriff, supra; Pierce v. Creecy, Chief of Police, supra; Innes v. Tobin, Sheriff, 240 U.S. 127, 60 L.Ed., 562, 36 S.Ct., 290; South Carolina v. Bailey, 289 U.S. 412, 77 L.Ed., 1292, 53 S.Ct., 667.
Sections 109-1 to 109-32, inclusive, General Code, became effective August 20, 1937, subsequent to the dates of the decisions in all the above cases cited by the petitioner. This enactment is popularly known as the "Uniform Criminal Extradition Act" (See 9 U. L. A., 173 et seq.) and has been adopted by the legislatures of not less than thirty-one states, including the state of Pennsylvania. See 8 Ohio State University Law Journal, 255, 256.
It is well recognized in the law that in order to charge one as an aider and abettor or conspirator in crime, it is not necessary to establish his presence at the scene of the crime. Constructive presence is sufficient.
Section 109-6, General Code, contemplates an extradition of a person charged with crime who may not be a fugitive from justice in the state from which he is to be extradited, by providing for the case where a person commits an act in one state the effect of which is the commission of a criminal offense in another state and authorizes his extradition into the state where the criminal effect is produced.
The fact that the Uniform Criminal Extradition Act, which does cover such situations, has been adopted by so many of the states indicates a need for such legislation to combat and suppress criminal conduct overlapping state boundaries. For that reason the court should be reluctant to strike down the legislative act in question unless it is clearly unconstitutional.
The federal enactments relating to extradition do not expressly or impliedly cover a situation such as that presented in the case at bar, and, since they do not, it would seem that there is no conflict between the federal and state enactments and that the latter merely supplement the former. It is to be observed that there are no negative provisions in the U.S. Constitution or federal legislation forbidding the extradition of one not physically present at the scene of crime in the demanding state. Congress in the enactment of Section 662, Title 18, U.S. Code, has exhausted its power on this subject under the constitutional grant and all additional power is reserved to the states.
Even if Congress had not exhausted its power, it has not attempted to legislate on this particular subject, and the state would have the power to do so in the form of enabling or supplemental legislation. See 8 Ohio Jurisprudence, 140, 161, Sections 39, 63; 35 Corpus Juris Secundum, 320; Cincinnati, W. Z. Rd. Co. v. County Commrs., 1 Ohio St. 77; City of Xenia v. Schmidt, 101 Ohio St. 437, 130 N.E. 24.
This court is of the opinion that Section 109-6, General Code, does not conflict with constitutional provisions and constitutes a valid enactment.
The petitioner complains also that the warrant of the Governor is insufficient and that the indictments do not charge crimes under the laws of Pennsylvania, but we do not find any merit in these claims.
The writ of habeas corpus will be and is denied.
Writ denied.
WEYGANDT, C.J., TURNER, MATTHIAS, ZIMMERMAN, SOHNGEN and STEWART, JJ., concur.