King v. Mount , 196 Ga. 461 ( 1943 )

1. A man who had been convicted and sentenced for the offense of embezzlement in the State of Louisiana was taken into custody by Federal authorities and was convicted and sentenced for a Federal offense. He was then returned to the authorities of Louisiana; and after serving a part of the sentence imposed upon him by the court of that State, he was by the Governor of the State "reprieved to the United States authorities to permit him to serve Federal sentence of five (5) years now pending against him." He was then taken to the Federal penitentiary in Atlanta for the purpose of serving such Federal sentence, and there remained until the sentence was served. He was then arrested on a warrant issued by the Governor of Georgia on a requisition from the Governor of Louisiana, in order that he might be extradited and required "to serve out his incomplete sentence" in that State. Held, that in the circumstances the man was a fugitive from the justice of Louisiana, within the purview of the constitution and laws of the United States, and was subject to extradition to that State.

2. After serving a part of the sentence imposed by the court of Louisiana, the authorities of the State could waive immediate service of the remainder, and postpone such service until after service of the Federal sentence; and in so doing they did not waive or release jurisdiction of Louisiana to demand the extradition of such convict.

3. Under the pleadings and the evidence, the judge did not err in refusing to discharge the convict on his application for the writ of habeas corpus.

No. 14537. JUNE 12, 1943. REHEARING DENIED JULY 13, 1943. The exception is to a judgment refusing to discharge the applicant, Max King, on his petition for the writ of habeas corpus. At the time of his application he was being held in custody by J. M. Mount, sheriff of Fulton County, on a warrant issued by the Governor of Georgia on a requisition from the Governor of Louisiana for his extradition, it being stated in effect in the requisition that Max King "stands charged in this State [Louisiana] with the crime of embezzlement," and is demanded in order that he may "serve out his incomplete sentence in the Louisiana State Penitentiary."

The petitioner alleged: On October 2, 1935, he was brought before the fourth district court of Louisiana on indictment for embezzlement, and given a sentence of five to fifteen years in the Louisiana State penitentiary. While waiting to be taken to the State penitentiary, he was tried before a Federal court on October 8, 1935, and sentenced to a term of five years in the United States penitentiary, on a charge of violating the motor-vehicle theft act, "the term to begin at the expiration of a State court sentence of five to fifteen years imposed in the State court." Petitioner was then released back to the State court and taken to the State penitentiary to serve the State sentence. He was received at the State penitentiary on October 26, 1935, and served until April 28, 1939, at which time the State of Louisiana called the Federal authorities and asked them to come and take him in custody, stating that they were through with him. The warden gave petitioner to the Federal authorities on April 28, 1939, to begin service of the Federal sentence, "which was to begin at the expiration of [his] State sentence of five to fifteen years.

"Petitioner contends that if the State of Louisiana had not been through with petitioner, why did they release him to the Federal authorities to serve the Federal sentence which was awarded by the Hon. Ben C. Hawkins, to begin at the expiration of the State court sentence of five to fifteen years. Petitioner contends that the State of Louisiana lost all jurisdiction over the petitioner on April 28, 1939, when they released him to the Federal authorities to serve his Federal sentence which was ordered to begin at the expiration of State court sentence. Petitioner contends that he has completed his State court sentence in Louisiana, and that they have no claim on him, and are causing his imprisonment in the Fulton County jail without due process of law. . . The petitioner has court records and minutes of the court to prove his contentions. The petitioner has a court order issued by the Hon. E. Marvin Underwood, ordering the petitioner released from the United States Federal penitentiary, Atlanta, stating that the petitioner has completed his State court sentence in Louisiana, the order [stating] that the petitioner completed his State court sentence and [entered] upon his Federal sentence on April 28, 1939."

By amendment the petitioner alleged, that he is not a fugitive from justice under the law; that he is not charged with any crime against the State of Louisiana; that he is not a parole, probation, or conditional release violator concerning the laws of Louisiana; that he is not an escaped convict or fugitive from justice of Louisiana; that he was not released from the Louisiana State penitentiary for trial in the United States court and then to be returned to the State of Louisiana. "That petitioner, while serving on a sentence in the State of Louisiana, and after serving a number of years thereon in the State of Louisiana, the alleged sentence for which the State of Louisiana is now seeking to return your petitioner, was, by the Governor of the State of Louisiana, reprieved, pardoned, and released from said sentence and turned out of and released from the Louisiana penitentiary by said Governor and the penitentiary authorities and surrendered and voluntarily turned over to and released to the United States authorities, and said State of Louisiana thereby lost jurisdiction over your petitioner and abandoned all claims to your petitioner with reference to said sentence." Petitioner's detention is illegal and unlawful, because violating his rights under the provision of the Georgia constitution that "No person shall be deprived of life, liberty or property without due process of law," and the corresponding provision of the constitution of the United States.

The respondent answered, admitting custody of the applicant, but denying that he had served the full sentence imposed upon him by the court of Louisiana.

Upon the hearing, the applicant testified: "That on October 2, 1935, he was given a sentence of five to fifteen years in the 4th district court of the State of Louisiana, . . and was then placed in the Louisiana jail on said sentence by the State of Louisiana authorities; that while waiting to be transported to the Louisiana State penitentiary, he was taken before the United States court on October 8, 1935, and given a sentence of five years in the United States penitentiary, Atlanta, said sentence to begin at the expiration of the Louisiana State sentence; that he was then taken back and turned over to the Louisiana State authorities and transported to the State penitentiary at Louisiana, where he entered upon and continuously served on said State sentence until April 28, 1939, when the State of Louisiana authorities and the Governor of Louisiana voluntarily took your petitioner and carried him out of the State penitentiary and delivered him to the United States authorities, all without his consent, and he was taken to the United States penitentiary, Atlanta, Ga., where he served on his United States sentence until February 21, 1943, when he was released therefrom and was arrested and held by the respondent." The applicant also introduced his application and the amendment thereto.

The respondent introduced in evidence the warrant of the Governor of Georgia, requisition from the Governor of Louisiana, information charging Max King with the offense of embezzlement, with plea of guilty, and sentence for not less than five nor more than fifteen years in the State penitentiary of Louisiana, the sentence being dated October 2, 1935; also letter from the warden of the Louisiana State penitentiary to the Governor of Louisiana, dated April 25, 1939, as follows: "26174X — Max King. It is recommended that this subject, a memorandum of whose record is attached, be reprieved to the United States authorities to permit him to serve Federal sentence of five (5) years now pending against him. When he is committed to Federal penitentiary this office will file detainer against him, so he can be returned to L.S.P. upon release, if we see fit." This letter was marked "Approved. R. W. Leche, Governor, April 25, 1939." Counsel for the plaintiff states in his brief: "The question presented is: Where a prisoner who has been sentenced in a State court and has entered upon and is serving and has served a number of years on said sentence is taken, without his consent, from the State penitentiary by order of the executive authority of said State and the warden of the penitentiary, and turned over to the United States authorities to be taken and is taken into another State to serve another sentence in the United States penitentiary in said other State, has said former State surrendered its jurisdiction of the prisoner under the extradition laws of the United States and the law of Georgia, and is said prisoner a fugitive from justice as contemplated by the constitution of the United States and the laws thereof and the laws of the State of Georgia?"

In Brown v. Lowry, 185 Ga. 539 (195 S.E. 759), it was held:

"Where a person is convicted of felony committed by him in one State, and he goes into another State, whether voluntarily or involuntarily, before serving the full term for which he was sentenced, he thereby becomes a fugitive from justice, within the meaning of section 2 of article 4 of the constitution of the United States, and the act of Congress February 12, 1793 (U.S. Comp. St. section 10126). Code, §§ 44-301, 44-302."

In the instant case the applicant was convicted of a felony in the State of Louisiana, and when he came into Georgia, even involuntarily, before serving the full term of his sentence, he entered as a fugitive from justice, according to the ruling in the Brown case. It would seem that that decision, without more, would require an affirmative answer to the question stated by counsel. But some other authorities may be noticed. "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." Code, § 44-302. In Johnson v. Lowry, 183 Ga. 207 (188 S.E. 23), Johnson, the applicant for discharge on writ of habeas corpus, had been convicted of the offense of burglary in the State of Alabama, and before completing his term in the penitentiary he was paroled. Before the term of his parole expired he was arrested by Federal officers, and upon a plea of guilty of possessing a stolen automobile he was sentenced, and was imprisoned in the Federal penitentiary in Atlanta. On completion of such sentence, the State of Alabama requested the warden of the United States penitentiary to hold the prisoner for that State. The State of Alabama applied for his extradition, to complete the unserved portion of the sentence of two to ten years, imposed in the burglary case, in that State. The extradition was granted by the Governor of this State. Johnson applied for the writ of habeas corpus. The court after a hearing remanded him to custody, and he sued out a writ of error, insisting that the State of Alabama, in surrendering him to the Federal authorities, waived that State's claim to "jurisdiction" over him for the completion of his sentence for burglary. This court affirmed the judgment, and in the decision it was stated: "The State of Alabama had the sovereign power to waive or pardon the convict, thus legally cancelling the unserved portion of his sentence. It could waive the immediate service and postpone such service until the convict could be tried by the United States court, and, if convicted, serve any sentence imposed by that court. The decision on that question was one to be made by the State of Alabama. The State chose the latter, that is, to waive temporarily, and not to cancel, the unserved portion of the sentence."

In the instant case the State of Louisiana "reprieved" King to the Federal authorities to serve a sentence in the United States penitentiary, the recommendation for such reprieve, as approved by the Governor, saying that, "when he is committed to the Federal penitentiary this office will file detainer against him, so he can be returned to L.S.P. upon release, if we see fit." The Governor of Louisiana issued a requisition for extradition of King on March 18, three days before he completed service of sentence in the Federal penitentiary. The warrant of the Governor of this State based on such requisition was issued on February 26, 1943. It thus seems that the authorities of Louisiana kept themselves informed as to the time when King's sentence in the Federal penitentiary would be completed; and it is inferable that the detainer referred to in the letter of the warden of the Louisiana penitentiary to the Governor of the State was filed "against him so that he can be returned to L. S. P. . . if we see fit." At any rate, no attack is made on the regularity of the requisition papers, and "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 upon 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."Blackwell v. Jennings, 128 Ga. 264 (57 S.E. 484). SeeHart v. Mangum, 146 Ga. 497 (91 S.E. 543); Bartlett v.Lowry, 181 Ga. 526 (182 S.E. 850); Beavers v. Lowry,186 Ga. 557 (198 S.E. 692); Scheinfain v. Aldredge, 191 Ga. 479 (12 S.E.2d 868). Upon the hearing the applicant introduced in evidence only his petition as amended, and his testimony as quoted in the preceding statement. This evidence did not conclusively and as a matter of law rebut the prima facie case made out by the warrant and requisition papers introduced by the respondent.

Counsel for the plaintiff relies on Hess v. Grimes,5 Kan. App. 763 (48 P. 596), and Ex Parte Youstler, 40 Okla. Cr. 273 (268 P. 323). In the Hess case it was held, in effect, that where the Governor of a State in which a person has been charged with crime honors a requisition for the prisoner by the Governor of another State and surrenders him accordingly, this will operate as a waiver of the jurisdiction of the asylum State. A statement to the same general effect was made in the Youstler case; and while the pronouncement in the latter case was clearly obiter, neither of these decisions can affect our conclusion in the present case. They would seem to be distinguishable, in that they involved the grant of an absolute extradition by the asylum State to another, while in the present case there was a mere reprieve, or stay of remainder of sentence, by the Governor of Louisiana, until the sentence of the Federal court could be served. But even if these facts do not distinguish the cases on principle, our own decisions cover the facts of the instant case, and are controlling as against those of other States. They are also in accord, as we think, with the decisions of the United States Supreme court, as well as the weight of State authority. See generally Roberts v. Reilly, 116 U.S. 80 (6 Sup. Ct. 291,29 L. ed. 544); Appleyard v. Massachusetts, 203 U.S. 222 (27 Sup. Ct. 122, 51 L. ed. 161, 7 Ann. Cas. 1073); Bassing v. Cady, 208 U.S. 386 (28 Sup. Ct. 392, 52 L. ed. 540, 13 Ann. Cas. 905); Ponzi v. Fessenden, 258 U.S. 254 (42 Sup. Ct. 309,66 L.ed. 607); Grogan v. Welch, 55 S.D. 613 (227 N.W. 74, 67 A.L.R. 1474); Minnesota v. Wall, 187 Minn. 246 (244 N.W. 811, 85 A.L.R. 114); Oregon v. Swain, 147 Or. 207 (31 P.2d 745, 93 A.L.R. 921); In re Cohen, 104 N.J. Eq. 560 (146 A. 423); Kammons v. Ashe, 114 Pa. Super. 119 (173 A. 715); Ex Parte Martin, 142 Kan. 907 (52 P.2d 1196); Ex Parte Anthony,198 Wn. 106 (87 P.2d 302); Spencer v. Hamilton, 12 F.2d 976; 22 Am. Jur. 264, §§ 24, 25; 35 C. J. S. 324-327, § 10; 22 A.L.R. 879.

The defendant argued a question of practice which we do not deem it necessary to deal with, since in any view of this question the judgment must be affirmed.

Judgment affirmed. All the Justice concur.