State Ex Rel. Lea v. Brown , 166 Tenn. 669 ( 1933 )

The questions presented on this appeal from a judgment sustaining a demurrer to a habeas corpus petition may be grouped under three general heads, first, the right of petitioners to a review of the trial in the courts of North Carolina, resulting in conviction, affirmed by the Supreme Court of that state, State v. Lea, 203 N.C. 13, 35, 164 S.E. 737, and followed by the denial by the United States Supreme Court of writs of certiorari, Lea v. State of North Carolina,287 U.S. 668, 53 S.Ct., 291, 77 L.Ed., 576; second, the right of petitioners to a hearing in the courts of Tennessee of the question of fact as to whether or not petitioners are fugitives from justice; and, third, whether or not petitioners may be held to have waived their right to contest extradition.

I. Under the first head, the validity of the proceedings in the North Carolina courts is challenged as in denial of due process on many grounds, including, as briefed by diligent counsel for petitioners, want of legal existence of the trial court, trial under an ex post facto law, picking of the jury, false allegations of venue, absence of defendants when indictments were transferred dominance of mob psychology, summary trial procedure, illegal testimony, unfair argument, unfair conduct of trial judge, failure of Supreme Court to apply corrective processes, failure of trial judge to exercise discretion on motion for new trial, summary dismissal of petitioners' appeal, etc. I deem it unnecessary to consider in detail these matters, for the reason that the members of this court are unanimously of opinion that this court is without jurisdiction to reopen and review these questions, all of which were made, or might have been made, in the North Carolina proceedings challenged, and particularly in view of the denial by the Supreme Court of the United States of petitions for writs of certiorari. It was peculiarily within the province of that tribunal to review the action of the courts of North Carolina in passing on the guilt or innocence of the accused in alleged violation of the due process clause of the Federal Constitution (Const. Amend. 14), or otherwise in denial of a fair trial.

II. An independent and wholly unpreadjudicated issue is presented under that head of the petition which resists extradition on the ground that petitioners were not within the demanding State of North Carolina when the crime with which they are charged was committed, and are therefore not fugitives from justice. The right of extradition and the remedy rest on familiar constitutional and statutory provisions. Independently of these, no foreign state could, save by force, remove a citizen from his home state for trial and punishment into another state. The fundamental requirement prescribed by the states as a condition of relinquishment of control over its citizens to a foreign state is that the citizen sought to be removed shall be a fugitive from justice of the demanding state; and, not once, but again and again, the United States Supreme Court has defined a fugitive from justice as one who, "having within a state committed that which by its laws constitutes a crime, when he is sought to be subjected to its criminal process to answer for his offense, has left its jurisdiction and is found within the territory of another." Or, as expressed by MR. JUSTICE PECKAM, in Munsey v.Clough, 196 U.S. 364, 374, 25 S.Ct., 282, 49 L.Ed., 515, quoted with approval by MR. JUSTICE McREYNOLDS in his opinion, recently published in South Carolina v. Bailey,289 U.S. 412, 53 S.Ct., 667, 671, 72 L.Ed., 1292, "when it is conceded . . . [as it is in the case before us, heard on demurrer to the petition] that the person was not within the demanding statewhen the crime is said to have been committed, and his arrest is sought on the ground only of a constructive presence at that time, in the demanding state, then the court will discharge the defendant. Hyatt v. New York ex rel. Cockran, 188 U.S. 691, 23 S.Ct., 456, 47 L.Ed., 657."

The words "when the crime is said to have been committed" are italicised, because it seems too evident for question that they express an absolutely determinative essential, or, as has been said, "a jurisdictional prerequisite to an extradition warrant."

And the foregoing language used by MR. JUSTICE PECKAM is quoted for the further reason that it has peculiar appropriateness to the case before us, in that it distinctly repudiates "constructive presence at that time" as a sufficient ground for removal under the extradition laws; the record in this case showing, as clearly recognized in the opinion of the Supreme Court of North Carolina, that the charge against the petitioners is that they were constructively, not bodily, "within the demanding state when the crime is said to have been committed."

As suggested by this reference to the opinion of the Supreme Court of North Carolina, it does thus appear that that court passed upon the question of guilt of the accused on proof of constructive presence in that state only, and this question was submitted by petition to the United States Supreme Court, which denied a review; but it is to be observed that this holding was in construction of the laws of North Carolina applied to defendants, personally within the jurisdiction of that state by voluntary appearance, and in this situation the United States Supreme Court might well have found no error. However, this adjudication had no possible application to the situation now presented, being an application for extradition of the petitioners, governed wholly by the laws particularly provided for such cases of attempted removal of persons from one state into another.

Reliance is had upon the appearance and conviction of petitioners in the foreign state, without reference to the fact, heretofore taken to be essential, of presence in the demanding state at the time when the crime was committed. No case is cited, or has been found, where the courts have held or hinted that a charge or showing of conviction of crime in the demanding state may be treated as a substitute for the charge of presence when the crime was committed. As said in Ex parte Lewis, 75 Tex. Cr. R., 320, 170 S.W. 1098, 1099, "Congress could have said, where a prosecution had matured into a judgment, that that would be sufficient basis for the extradition; but that body has not so enacted, and until this occurs the states are powerless to provide this as a basis for extradition." And this seems so in reason, having in mind the principle involved when foreign countries and sovereign states yield, by treaty, or, as here, by federal constitutional provisions, the right to protect its own citizens from that prejudice which naturally accompanies trial of a foreign accused among those to whose ties of blood and nationality he is a stranger. It is natural that, when removal is sought, it should be at least charged that the demanded citizen had abandoned the protection of his own state or territory and gone within the foreign demanding state and there committed crime against its laws. He has thereby elected that jurisdiction for his offense, and should be returned to it on demand for trial. History records the jealousy with which the right to extradite and try in a foreign state has been guarded and denied, unless the offense has been there committed. Certain classes of offenses, under a statute of the arbitrary reign of Henry VIII, although committed out of the realm, were authorized to be tried in any county in England. "But," says COOLEY, J., in Swart v.Kimball, 43 Mich. 449, 5 N.W. 635, 638, "it is well known that the existence of such statutes, with a threat to enforce them, was one of the grievances which led to the separation of the American colonies from the British empire."

No extended citation of the many cases defining "fugitive from justice," as used in the extradition statutes, will be made. A few follow. In McNichols v. Pease, 207 U.S. 100, 28 S.Ct., 58, 52 L.Ed., 121, MR. JUSTICE HARLAN summarizes the holdings and plainly treats the question whether or not the accused was physically present in the demanding state upon the commission of the crime with which he stands charged as determinative of the issue, in accord with the earlier case of Roberts v. Reilly,116 U.S. 80, 6 S.Ct., 291, 300, 29 L.Ed., 544, wherein this rule was laid down. Holding that the question of whether or not the petitioner was a fugitive from justice was one of fact, the opinion concludes (italics inserted): "The appellant in his affidavit does not deny that he was in the State of New York about the date of the day laid in the indictment; . . . and the fact that he has not been within the state since thefinding of the indictment is irrelevant and immaterial. To be a fugitive from justice, in the sense of the act of congress regulating the subject under consideration, it is not necessary that the party charged should have left the state in which the crime is alleged to have been committed, after an indictment found, or for the purpose of avoiding a prosecution anticipated or begun, but simply that, having within a state committed that which by its laws constitutes a crime, when he is sought to be subjected to its criminal process to answer his offense, he has left its jurisdiction, and is found within the territory of another."

In 25 Corpus Juris, 257 it is said: "To constitute one a fugitive from justice from a given state it is essential that the person having been within the demanding state shall have left it and be within the jurisdiction of the state from which his return is demanded, and that the person shall have incurred guilt before he left the former state and while bodily present therein. If he was only `Constructively' in a state, committing a crime against it, although not personally within its borders, he has not fled from it and is not a fugitive from justice."

And so, in 11 Ruling Case Law, 730, 731, it is said:

"As has been previously noted, the federal constitution and the laws of Congress passed in pursuance thereof do not provide for the extradition of any persons except those who have fled from or left the demanding state as fugitives from the justice of that state; and it appears to have been generally held that a person cannot be such a fugitive unless he was in the state from which the demand comes when it is charged that the crime was committed. The fact of the accused's presence therein at the time of the commission of the offense charged must be affirmatively shown and should be recited in the extradition warrant. And the accused is entitled, under the Act of Congress, to insist on proof of this fact."

In Words and Phrases, First Series, volume 4, page 2995, the definition is thus stated:

"What constitutes a fugitive from justice has been the subject of much discussion by eminent text-writers, and of many decisions by the courts and by the Governors of the several states. There seems to be a substantial unanimity in all the authorities on one proposition: that, to be a fugitive from justice, a person must have been corporeally present in the demanding state at the time of the commission of the alleged offense. So that a person who was only constructively present in a state demanding his extradition at the time of the commission of the alleged crime cannot be said to be a fugitive from justice; his actual presence being required" (citing numerous cases).

In Taft v. Lord, 92 Conn. 539, 103 Atl., 644, 645, L.R.A., 1918E, 545, 547, the court said:

"To constitute one a fugitive from justice, as administered in a given state, two things are essential, to-wit: (1) That he, having been in that state, has left it and is within the jurisdiction of another; and (2) that he incurred guilt before he left the former state and while he was bodily present in that state" (citing authorities).

The Court of Appeals of New York, in Keller v. Butler, 246 N.Y. 249, 251, 158 N.E. 510, 511, 55 A.L.R., 349, said: "Unless the plaintiff was in the State of Florida at the time of the commission of the crime, he could not be extradited under the Constitution and laws of the United States. His actual, not his constructive, presence was necessary in the State of Florida to make him a fugitive. Hyatt v. New York exrel. Corkran, 188 U.S. 691, 23 S.Ct., 456, 47 L.Ed., 657;McNichols v. Pease, 207 U.S. 100, 28 S.Ct., 58, 52 L.Ed., 121. Therefore, it might be that he could be convicted of a crime committed through his instigation, if caught in the State of Florida, although he could not be brought from another state upon any such charge."

Cases there are where persons have broken custody, or broken parole, and been extradited, but in most of these cases the ground of extradition laid was the charge then pending that the person had committed a crime in the demanding state, in conspiring to break custody, as in Dew v. Thaw,235 U.S. 432, 35 S.Ct., 137, 59 L.Ed., 302; or in breaking parole, see Exparte Williams, 10 Okla. Crim. 344, 136 Pac., 597, 51 L.R.A. (N.S.), 668; Drinkall v. Spiegel, 68 Conn. 441, 36 Atl., 830, 36 L.R.A., 486; People v. Mallon, 218 App. Div., 461, 218 N.Y.S., 432.

It is significant that the contention made in foregoing cases was that, after conviction, no "charge" of crime, as required by the language of the extradition statutes, longer remained, but no suggestion was offered or considered that the conviction could be treated as sufficient of itself, in substitution for thecharge of crime committed in the foreign state. The essentiality of this requirement seems clearly to have been assumed as a condition of extradition. Conviction was held to be merely in confirmation of, not a sufficient substitute for, the charge of crime.

III. But, conceding, as hereinbefore indicated, the general right of a person sought to be removed under an extradition warrant to contest by habeas corpus the fact of his bodily presence within the demanding state where the crime with which he is charged was committed, and this despite a previous conviction in the demanding state, have not the petitioners in the case before us bindingly waived their right to resist extradition? Waiver is concisely defined as "the voluntary relinquishment of a known right." 27 R.C.L., 904. Waiver is a doctrine of very broad and general application. It concedes a right, but assumes a voluntary and understanding relinquishment of it. "It is a voluntary act, and implies an election to dispense with something of value, or to forego some advantage which he might at his option have demanded and insisted on." 27 R.C.L., 904.

An affidavit of Col. Luke Lea, one of the petitioners here, made and filed in the trial court in North Carolina on the 29th of July, 1931, in support of his application for a continuance, sets forth facts relied on to show waiver. A pertinent extract therefrom reads as follows:

"On March 16, 1931, an indictment was returned against said affiant and others by this Court, charging a conspiracy to violate the banking laws of said State. Said indictment was numbered 255 and reference is here made to the record of that Court for the contents of same.

"On March 27, 1931, affiant voluntarily appeared in the State of North Carolina, to answer the charges contained in said indictments.

"Before making such voluntary appearance, and after he had been informed that said indictments had been returned against him, and had obtained a certified copy thereof, affiant was advised bycounsel he had consulted that he was not subject to extradition to answer the charge embraced in said indictment, for the reason that he was not insaid State of North Carolina at or about the time of thecommission of the acts charged in said indictments; but affiant,notwithstanding his legal rights to remain in Tennessee, beingconvinced of his innocence and confident of his ability toestablish such innocence upon a fair trial, voluntarily appearedas aforesaid." (Italics inserted.)

A reading of the italicized language in connection with the definition of waiver last above quoted is peculiarly suggestive. Quite clearly we have here "a voluntary act," also an "election," with knowledge supported by legal advice, to "dispense with," or to "forego," an "advantage" or right, which petitioner might have "demanded and insisted on."

The record further shows that thereafter, presumably accepting and relying on this waiver of the right to resist extradition, should they leave the jurisdiction and return to Tennessee, bonds for their appearance to respond to the final judgment of the North Carolina courts were executed by petitioners and accepted. An element of estoppel thus appears.

A party may waive any provision of a contract, statute, or constitution intended for his benefit. Bouvier Anderson's Law Dictionaries. These and other textbook authorities follow the language of MR. JUSTICE STRONG in the early case of Shutte v.Thompson, 15 Wall. 151, 159, 21 L. Ed. 123, "a party may waive any provision, either of a contract or of a statute, intended for his benefit." So, it was said in a leading case, In re Cooper,93 N.Y. 512, "It is very well settled that a party may waive a statutory and even a constitutional provision made for his benefit, and that having once done so he cannotafterward ask for its protection. [Italics inserted.] (Lee v.Tillotson, 24 Wend. [N.Y.], 337 [35 Am. Dec. 624]; Embury v.Conner, 3 N.Y. 511 [53 Am. Dec. 325]; Cooley's Const. Lim. 181.) The appellant is in this position. He participated as an actor in procuring the order which he now seeks to set aside, and took his chance. . . . To that end there was not only acquiescence on his part, but intelligent and efficient dealing with the matter and consent to the order. By this consent he must be deemed to have made his election and should be held to it."

So, following indictment in North Carolina, petitioners had the right to stay in Tennessee and, in response to extradition proceedings here, contest removal on the ground that they had not been physically within the demanding state at or about the time of the commission of the crime. This right was clear. But this record shows that petitioners, protesting their innocence and unwilling to rest under the charges, freely and voluntarily went into the State of North Carolina, waiving extradition, and presenting themselves there for trial in the courts and under the laws of that state. They boldly and freely made their choice and relinquished their right to resist extradition. They thus made their election. In acceptance of this voluntary waiver and appearance, the State of North Carolina proceeded to try them at large expense, and after conviction, permitted them, pending appeal, to give bond for their future appearance and depart the confines of that state. Here appear elements frequently present and incident to and which strengthen waiver — election and estoppel. Despite this definite course of conduct, strongly indicative of waiver, with all its elements, may petitioners, when sought to be returned to the jurisdiction of their persons which they had, in apparent full appreciation of the consequences, voluntarily adopted, be heard to invoke the defense which they had thus relinquished after adoption of this appearance and waiver and action thereon by the courts of the State of North Carolina?

Looking further to the application by the courts of this doctrine of waiver, it is to be conceded that there are recognized limitations thereon, particularly in criminal cases. Lack of jurisdiction of subject-matter is a generally recognized exception. "It is a maxim in the law that consent can never confer jurisdiction; by which is meant that the consent of parties cannot empower a Court to act upon subjects which are not submitted to its determination and judgment by the law." Cooley on Const. Lim. p. 575. But such jurisdiction of the "subjects" was not here wanting. Clearly the courts of North Carolina had jurisdiction to try the crime with which petitioners were charged. This cannot be denied. So long as petitioners were beyond the limits of that state, they were immune from trial in its courts, but, when present there, jurisdiction was complete, and the judgment of the courts of that state fully binding. In one way only could jurisdiction of the person have been defeated, namely, by their absence from that state. This originally lacking jurisdictional element was supplied by their voluntary appearance.

The general rule undoubtedly is that the objection that a court has no jurisdiction of the person of the accused may be waived. See many cases cited to support this text in 16 C.J. 184; none being cited to the contrary.

It is the issue of venue which is here involved. It is well settled that "the right which the constitution gives to a defendant to be tried in the county in which the offense was committed is a personal privilege and may be waived by him." 16 C.J., 187, citing In re Mote, 98 Kan. 804, 160 Pac., 223;State v. Kindig, 55 Kan. 113, 39 Pac., 1028; Kennison v.State, 83 Neb. 391, 119 N.W. 768; State v. Crinklaw,40 Neb. 759, 59 N.W. 370; State v. Browning, 70 S.C. 466,50 S.E. 185. This court holds that "the right to object to the locality of trial is a personal privilege which the party may waive and thereby confer jurisdiction." Brown v. Brown, 155 Tenn., at page 537, 296 S.W. 356, 358, citing cases.

This waiver of venue rights has been recognized in many cases and under various conditions, although fundamental constitutional rights are those cut off. Supporting the text, "persons procuring or consenting to a change [of venue or Court] cannot object to the jurisdiction of the new Court," 16 C.J., at page 222, citesState v. McLendon, 1 Stew. (Ala.), 195; People v. Zane,105 Ill. 662; Taylor v. Commonwealth, 172 Ky. 136, 188 S.W. 1087. Even constitutional protection against second jeopardy, a carefully guarded right, may be waived. See State v. Gillis, 73 S.C. 318, 53 S.E. 487, 5 L.R.A. (N.S.), 571, 144 Am. St. Rep., 95, 6 Ann. Cas., 993; Sacra v.Commonwealth, 123 Ky. 578, 96 S.W. 858, 29 Ky. Law Rep., 1010; Jones v. Commonwealth, 124 Ky. 26, 97 S.W. 1118, 30 Ky. Law Rep., 288; Burnett v. State, 76 Ark., 295, 88 S.W. 956, 113 Am. St. Rep., 94.

The foregoing authorities illustrate the application of the waiver doctrine to criminal cases. Limitations of the doctrine in criminal cases have frequently been declared. For example, personal presence of the accused on trial for a felony may not be waived. Hopt v. Utah, 110 U.S. 578, 4 S.Ct., 202, 28 L.Ed., 262. "If he be absent," says Cooley (Const. Lim., p. 452), "either in prison or by escape, there is a want of jurisdiction over the person, and the Court cannot proceed with the trial," etc. And so it is held that an accused may not waive trial by jury in a felony case, provided for by "Magna Charter," or consent to trial by less than twelve.State v. Stewart, 89 N.C. 563; Cancerni v. People, 18 N.Y. 135. And see many cases cited in Cooley's Const. Lim. p., 458, to the same effect, but this is not universally the rule, as noted by the same high authority. "The rights guaranteed to one accused of crime fall naturally into two classes — those in which the State, as well as the accused, is interested; and those which are personal to the accused which are in the nature of personal privileges. Those of the first class cannot generally be waived, those of the second generally may be." 8 R.C.L., 60.

Broadly speaking, the recognized limitations on waiver in criminal cases are directed and confined to the assurance of a fair trial of an accused, in whose life and liberty the public, and not he only, has an interest, in a court having jurisdiction of the subject-matter and of the person. No case has been found denying the right on grounds of public policy, or otherwise, of an accused to submit himself voluntarily to the jurisdiction of a court having jurisdiction of the subject-matter (here the crime with which he is charged), and thereby waive objection to said court.

While the case before us differs on its facts from any heretofore considered, so far as has been found, the principle involved in the application of waiver appears sound, as heretofore indicated, and has been given effect in situations that are analogous. Some of these have been referred to; others might be cited. For example, more than one hundred years ago (1823) it was said by CHIEF JUSTICE MARSHALL, in response to a motion, presented by Mr. Webster, to dismiss a writ for want of jurisdiction of the person, that "the exemption from arrest in a district in which the defendant was not an inhabitant . . . was the privilege of the defendant, which he might waive by a voluntary appearance;" and that, "where the defendant voluntarily appeared in the court below, without taking the exception, it was an admission of the service, and a waiver of any further inquiry into the matter." Gracie et al. v.Palmer et al., 8 Wheat, 699, 700, 5 L.Ed., 719, wherein the defendant was a resident of New York, and the suit was pending in Pennsylvania.

Waiver was applied in Re Popejoy, 26 Colo. 32, 55 Pac., 1083, 1085, 77 Am. St. Rep., 222, cited by counsel for North Carolina, where the defendant had been arrested in a county other than that in which the officer had authority to act. To the challenge of the defendant directed to the right of the court to proceed against him, the court responded: "Inasmuch as the petitioner [for habeas corpus] . . . appears to have voluntarily submitted to such arrest and removal . . . he has waived the right to raise this question by voluntarily accompanying the sheriff to the county of Arapahoe."

The situation of petitioners in the instant case is somewhat similar to that of one who had voluntarily accompanied an arresting officer from another state, waiving all extradition proceedings, and submitted himself to trial in the courts of a foreign state. This is a common and usual practice.

Again recognition of the application of the doctrine of waiver, pertinent by analogy, appears in cases dealing with assertion of the constitutional exemption from arrest of members of legislative bodies. See Prentis v. Commonwealth, 5 Rand. (26 Va.), 697, 16 Am. Dec., 782. And, while the writ of habeascorpus was denied by the United States Supreme Court inStallings v. Splain, 253 U.S. 339, 343, 40 S.Ct., 537, 539, 64 L.Ed., 940, on the ground that the petitioner having given bond was not under actual restraint, MR. JUSTICE BRANDEIS recognized the applicability to a case of resisted removal to a demanding state in this pointed language:

"Furthermore by voluntarily giving bail to appear in Wyoming,the purpose of the removal proceedings had been accomplished, andall questions in controversy in the habeas corpus and in theremoval proceedings terminated. Whether his arrest and detention had originally been valid was thereby rendered immaterial. ReEsselborn (C.C.), 8 Fed., 904. And likewise the questionwhether there was a right then to remove him. Compare Cheong AhMoy v. United States, 113 U.S. 216, 28 L.Ed., 983, 5 S.Ct., 431; Ex parte Baez, 177 U.S. 378, 44 L.Ed., 813, 20 S.Ct., 673."

And see, to the same effect, Unverzagt v. U.S. (C.C.A., 1925), 5 F.2d 494.

Such is the case now before us. The right of trial by jury was preserved by this waiver, with all its essential incidents and forms. Whether observed or not in the procedure had, whether or not the "due process" protective rights of the accused were violated, were matters for the courts of North Carolina, subject to review by writ of certiorari by the Supreme Court of the United States. The question here relates only to the initial right to try the accused at all, which right they voluntarily conferred by consent, a matter of jurisdiction of the person, and in doing so waived the right to contest the question originally open to them of bodily presence within the State of North Carolina at the commission of the crime for which they consented to be tried by the courts of that state.

However, petitioners made answer to the application of waiver on the ground that, while they did voluntarily waive extradition and present themselves for trial in North Carolina, they did so to answer charges contained in certain indictments which at that time had been found against them; that, upon and after their appearance and surrender to the North Carolina court, other indictments were found containing distinct and additional charges on which they were forced to trial without opportunity for preparation of defense, over their objection and protest, and were convicted thereon. This is plausibly urged. The refusal of a continuance after the new charges were preferred was complained of and passed on by the Supreme Court of North Carolina and was one of the complaints submitted to the Supreme Court of the United States, and as to that issue this court is foreclosed. However, it is for this court to consider whether or not waiver, which must always be supported by the elements of understanding and intention, may be applied, in view of the alleged changes made in the charges preferred, subsequent to the submission by petitioners of their persons to the North Carolina jurisdiction.

Two answers appear to this contention of petitioners. In the first place, whatever a comparison of the indictments may indicate, the record shows that petitioners filed and relied on, in response to the indictment on which they were tried, sworn pleas, based on the assertion that the new or amended indictments were substantially the same as the originals which petitioners went to North Carolina to be tried on. This plea, sworn to by both of the petitioners here, in part recites: "The defendants would further show that at the time of the returning of said purported indictment there were pending before this Court other purported indictments being styled `State ofNorth Carolina versus Wallace B. Davis, Luke Lea, Luke Lea, Jr.,and E.P. Charlet,' and numbered 255 and 225A, and . . . undertaken to be returned by said purported Grand Jury at the March and April, 1931, terms of said Court, undertaking to charge these defendants, and all of them, with the same alleged offenses undertaken to be charged, and, as these defendants are informed and believed, and therefore aver, will be relied upon and sought to be proven by the State in this cause, and these defendants, therefore, plead this fact of former suits pending to said purported Indictment 255, 255A, and . . ." It will be observed that it is expressly alleged that by the new indictments the defendants are "undertaken to be charged" with "the same alleged offenses" charged in the former indictments.

In the next place, while an inspection discloses variations in details, it is not clear that the substance of the charges was not the same. It is not readily conceivable that the difference in form and details of the charges would have induced a different course on the part of petitioners in the matter of their voluntary appearance for trial in North Carolina. It seems highly probable that the same disposition to face their accusers and challenge their charges in the courts of even a foreign state, would have been shown, if the indictments had originally been framed as they were later. This view is sustained by the showing on the record that petitioners were protesting their innocence and went eagerly to meet their accusers, unwilling to hide behind available defenses to extradition. And, finally, as emphasized by the Supreme Court of North Carolina, while there was conviction under the seventh count, as well as under the first and fifth, it being mainly the seventh count which presented the new and additional charges above mentioned, the sentences under the seventh count were provided to run concurrently with those under the preceding counts, with the result that, if error was committed with respect to this count, no practical injustice has resulted to the accused, petitioners here.

In view of the importance to the public and the accused of the questions presented on this large record, some of which do not appear to have been heretofore directly decided, and in recognition of the unusual diligence of counsel in the presentation of authorities and argument, I have felt it proper to state my views thus fully.

In conclusion, it will be seen that (1) this court is unanimous in holding that it cannot review the validity of the judgments of the courts of North Carolina, or their action in passing on the guilt or innocence of the accused; and that (2) MR. JUSTICE McKINNEY and CHIEF JUSTICE GREEN concur with me in holding that the petitions must be dismissed and the judgment affirmed on the ground that by their voluntary conduct and declarations petitioners have waived any right they originally had to resist extradition; and that (3) MR. JUSTICE COOK and CHIEF JUSTICE GREEN concur with MR. JUSTICE SWIGGART in holding that, regardless of waiver, petitioners are subject to extradition under the applicable statutes, because they were personally present before the courts of North Carolina and there tried and convicted and thereafter fled the state.

Although thus entertaining divergent views as to grounds of action, the court agrees unanimously that the judgment of the trial court must be affirmed dismissing the petition for habeascorpus and remanding the petitioners to the custody of the North Carolina authorities.

McKINNEY, J., concurs in this opinion.

GREEN, C.J., concurs on the question of waiver.