Ex Parte Hobbs , 32 Tex. Crim. 312 ( 1893 )

Relator was arrested under an executive warrant issued by the Governor of this State, on the requisition of the Governor of Tennessee, for the crime of murder, committed in the State of Tennessee. This executive warrant was issued in February, and was duly executed in Collin County by the arrest and delivery of relator to one C.D. Heard, the duly authorized agent of the State of Tennessee. The said agent conveyed the said relator out of the limits of the State, and while on his way to Tennessee, to-wit, at Meridian, Mississippi, relator escaped from the custody of said agent and returned to Texas.

Afterwards, to-wit, on the 7th day of April, 1893, upon the representation of the fact of the escape, and at the request of the agent, a second executive warrant for the arrest of relator was issued by the Governor of Texas, and relator was arrested thereunder. Prior to the issuance of the second warrant, to-wit, on the 22nd of March, 1893, an attempt was made to arrest relator, in which one D.H. Oats, one of the posse attempting the arrest, was shot and wounded; and upon the 7th of April thereafter a warrant for his arrest was issued by one A.T. Andrews, justice of the peace, charging relator with an assault with intent to murder said Oats. Relator was arrested, and is now held, under this warrant, being bound over in the sum of $2000, and was so held at the time of the service of the executive warrant aforesaid. On the 9th of May, 1893, the relator presented his petition for a writ of habeas corpus before the Hon. T.J. Brown, judge of the Fifteenth Judicial District, alleging he was illegally restrained of his liberty by J.L. Moulden, sheriff of Collin County, and one Hiram Church, who is the agent of the State of Tennessee; that the examining trial before the justice of the peace of Collin County, to-wit, A.T. Andrews, for the assault upon Oats, is not yet concluded; and the relator claimed his discharge upon the ground, (1) that so far as the charge of assault with intent to murder is concerned, it is shown by the testimony set forth in said petition to have been done in his necessary self-defense, as the posse was attempting to arrest him without legal authority, and began to fire upon him without provocation or necessity; (2) that so far as the executive warrant is concerned, the Governor of Texas, having issued one warrant upon the requisition of the Governor of Tennessee, had no authority to issue another warrant, and that he could not do so upon parol evidence; and the first warrant being functus officio, by the delivery and removal of the relator beyond the limits of the State, the Governor had no right to issue a second warrant without new requisition. Upon hearing the application, the district judge ordered relator to be held by the sheriff of Collin County until the charge against relator, pending before Andrews, justice of the peace, is disposed of, and then the relator should be delivered to Hiram Church, agent of Tennessee, in obedience to the requirements of the executive warrant of the Governor of Texas. From these judgments relator appeals to this court.

We can not concur in the proposition, that when a fugitive from justice is delivered to the agent of the demanding State, and is carried by him out of the limits of the asylum State, the power and duty of its Governor absolutely ceases, and there can be no second delivery without a new requisition, however obvious the necessity. It would certainly be a most technical construction of a solemn duty imposed by the highest law in the land to hold that a fugitive from justice, who escapes from the agent while in transit, a short time after delivery, and returns to the State, can not be rearrested by an alias warrant of the Governor, if the first has been returned executed. The question is not affected by the escape being made within or without the limits of the asylum. State, if in fact the fugitive is again found in the State after the escape. The Executive of the asylum State has already, under the Constitution and acts of Congress, been duly notified of the pendency of an indictment against the fugitive, charging him with crime, and demanding his extradition, and by the act of delivery the person so delivered is solemnly adjudged to be a fugitive from justice, subject to be returned to the demanding State. There is, indeed, no law prescribing what is to be done in case of interstate extradition where there is an escape, nor how nor by whom the Governor of the asylum State is to be notified of the fact of the escape. But it does not follow that the Governor may not be credibly notified of the fact, and that it is not in his power to order the arrest. In fact, being the only authority which can order the arrest, it would seem to be his duty to do so. While it is right that he be notified, to prevent all illegal recapture, yet, where he is satisfied that there has been an escape, a due regard for the administration of the criminal law, and the security and welfare of the different States, demands that a person committing crime in one State should not find asylum in another. The agent appointed by the demanding State to receive the fugitive can not bring an armed force to assist in arresting the fugitive.

No State can lawfully exercise its powers of arrest in the territory of another State. Representing a sovereign State, whose laws have been violated, he comes simply to receive, and looks to the Executive of the asylum State to deliver, in obedience to the requirements of the Federal Constitution and laws. After delivery he may use all precaution to prevent escape and insure safe carriage of the prisoner, and may follow in hot pursuit of recapture; but if an escape is in fact accomplished, and the fugitive returns to the asylum State, the agent may not gather an armed force, and arrest by violence in said State, but should, before, report such escape to the Executive, and obtain his assistance, and we can see no reason why the Governor should not act on such information. There can be no possibility of an injury. The prisoner has a right, by habeas corpus, to show that his detention is illegal; that he has been acquitted or discharged by the court of the demanding State; or other cause entitling him to discharge. 7 American and English Encyclopædia of Law, title "Extradition," page 642, section 18, says: "If, after the fugitive has been delivered up to the demanding State, he escapes, by forfeiting his bond or otherwise, and again becomes a fugitive from justice, the Governor may order a second arrest and delivery."

2. But an important question arises in this case, out of the fact that pending the execution of the warrant of the Governor, the relator became subject to the jurisdiction of this State, by being charged with the commission of a felony, and was under arrest and examination for a violation of the laws of Texas when the second warrant of arrest issued by the Executive of this State was executed upon him.

In Taylor v. Taintor, 16 Wallace, 366, the court says: "When a demand is property made by the Governor of one State upon the Governor of another, the duty to surrender is not absolute and unqualified. It depends upon the circumstances of the case. If the laws of the latter State have been put in force against the fugitive, and he is imprisoned there, the demands of those laws may first be satisfied." By a violation of the laws of Texas, while a fugitive, the relator has been brought within the jurisdiction of our own courts. This jurisdiction, being operative, takes precedence of the one claimed until its purpose shall have been completed. The Governor of this State has no power, by the issuance of warrant, to arrest its action. Spear on Extr., 444; 7 Am. and Eng. Encycl. of Law, title "Extradition," 143, and note 2. It has been held by this court, that where relator is held under and by virtue of an extradition warrant, he is not entitled to bail. Ex Parte Erwin, 7 Texas Cr. App., 296. The relator is held under arrest under both the warrant of the justice of the peace and the executive warrant, and while the first is bailable, the second is not so. Therefore, while the relator may be kept until the final disposition now pending against him in this State, he can not be bailed; but it will be the duty of the sheriff to hold him in custody, and notify the State agent of Tennessee when the cause is finally decided, and deliver him to said agent, in pursuance of the executive warrant. The judgment of the District Court is reversed, in so far as it orders the sheriff to deliver the relator to the agent of Tennessee after the determination of the cause in the Justice Court; and it is hereby ordered, in case relator is discharged by said justice, on hearing, that he be delivered to said agent, but if bound over by said justice, that he be held until final disposition of said cause, and then delivered to the said agent, in accordance with this judgment.

Ordered accordingly.

Judges all present and concurring.