Opinion
No. 29,267.
October 28, 1932.
Extradition — rendition warrant — presumption — right to discharge an habeas corpus.
The governor's rendition warrant creates a presumption that the accused is a fugitive from justice; and to entitle a prisoner held under such a warrant to discharge on habeas corpus the evidence must be clear and satisfactory that he was not in the demanding state at the time the alleged crime was committed. Where the evidence is conflicting and not clear and satisfactory as to such absence, the writ of habeas corpus will be discharged.
Upon petition of Harold Ross the district court for St. Louis county issued its writ of habeas corpus directed to the sheriff of that county, by whom relator was held under a warrant of rendition issued by the governor of Minnesota upon the requisition of the governor of Wisconsin, charging him with the crime of bank robbery. Upon hearing, the district court, Kenny, J. discharged the writ and remanded relator to the custody of the sheriff. Relator appealed to this court, where there was a trial de novo. Order discharging writ affirmed and relator remanded to custody of sheriff.
Nelson Cedergren, for relator.
Henry N. Benson, Attorney General of Minnesota, James E. Markham, Deputy Attorney General of Minnesota, Harry E. Boyle, County Attorney of St. Louis county, Minnesota, A.J. Connors, District Attorney of Barron County, Wisconsin, and Samuel Bryan and J.E. Messerschmidt, Assistant Attorneys General of Wisconsin, for respondent.
This case comes here on an appeal from an order of the district court of St. Louis county dissolving a writ of habeas corpus.
The relator was charged with robbing the Bank of Cameron at Cameron, Wisconsin, on July 15, 1932, at 11:40 a. m. Without discussing the evidence in detail, the relator offered very strong proof that he was not in the state of Wisconsin at that time but that he was at the home of his parents in Duluth. The sole question presented by this record is whether or not he was within the state of Wisconsin at the time the crime was committed.
The robbery there was perpetrated by three men. One of them waited in an automobile for the other two at some little distance from the bank. The robbery was abortive because discovered by people outside the bank before it was accomplished. The two robbers sought safety in flight. One witness for the respondent intercepted their flight and, at close quarters with both of them, shot one of the robbers to death. It is the other flying robber who is alleged to have been this relator. He is so identified by the man who shot his mate. The assistant cashier of the bank also identifies the relator as one of the two men who was in the bank at the time of the robbery.
Presumptively, the governor's warrant proves that the accused is a fugitive from justice; and, unless the evidence makes it clearly and satisfactorily to appear that he was not in the demanding state at the time the crime was committed, the writ must be discharged and the rendition warrant executed. In re Sanders, 154 Minn. 41, 191 N.W. 391; People ex rel. McNichols v. Pease, 207 U.S. 100, 28 S. Ct. 58, 52 L. ed. 121; State ex rel. Liimatainen v. Boekenoogen, 140 Minn. 120, 167 N.W. 301. Guided by these decisions we must hold that the identification by the two witnesses from Wisconsin is not so overborne by the strong alibi indicating the relator's presence in Duluth as to require a holding that he is not a fugitive from justice.
The order discharging the writ is affirmed, and the relator is remanded to the custody of the sheriff of St. Louis county for disposition under the rendition warrant of the governor.