Johnson v. BURKE, ETC.

¶1This case involves the constitutionality of the Uniform Criminal Extradition Act which is ch. 49, §§1-30 of the Acts of 1935.1

¶2In the lower court appellant filed petition for writ of habeas corpus. Return was filed by appellee-sheriff alleging appellant was arrested pursuant to a warrant of the Governor of the State of Indiana issued in extradition proceedings initiated by the State of Arizona, the demanding state. Appellant filed affirmative answer to the return to the writ.

¶3At the hearing of said cause appellant attempted to show by his testimony that he was not in the State of Arizona on the date the offense was allegedly committed, to-wit: February 15, 1955, and that he had not been in Arizona since the year 1951; that he had not fled from the State of Arizona or any other state, and that at the time of the alleged offense was in the *4State of Indiana. Appellee objected to the introduction of this evidence and the objection was sustained.

¶4The court denied the petition for writ of habeas corpus and overruled appellant’s motion for new trial.

¶5The question on this appeal according to appellant’s brief is whether, in a habeas corpus proceeding to test the validity of an arrest and detention made by virtue of a Governor’s extradition warrant, the petitioner may offer evidence to prove that he was not in the demanding state at the time of the alleged offense.

¶6Appellee relies on §20 of the Uniform Extradition Act (Acts of 1935, ch. 49, §20, being Burns’ §9-438, 1956 Replacement) which provides in substance:

“The guilt or innocence of the accused as to the crime of which he is charged may not be inquired into by the governor or in any proceeding after the demand for extradition accompanied by a charge of crime in legal form as above provided shall have been presented to the governor, except as it may be involved in identifying the person held as the person charged with the crime.”

¶7Appellant concedes that this court in Taylor v. Smith (1939), 213 Ind. 640, 13 N. E. 2d 954, construed the quoted portion of the above statute to limit the evidence in habeas corpus brought thereunder to the question of identity only.

¶8Appellant does not urge that the Taylorcase, which limited the evidence to the question of appellant’s identity, is too broad a construction of the statute,2*5but contends solely that the construction of the Uniform Extradition Act by the Taylorcase violates the Federal (Art. 4, §2, cl. 2, and 14th Amendment) and State (Art. 1, §12, and Art. 1, §27) Constitutions. We shall now consider these contentions.

¶9Art. 4, §2, cl. 2 of the U. S. Constitution provides:

“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.”

¶10The Act of Congress (1948), ch. 645, 62 Stat. 822 (Title 18, U. S. C. A., §3182), implementing such constitutional provision provides:

“Whenever the executive authority of any State or Territory demands any person as a fugitive from justice, of the executive authority of any State, District 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, the executive authority of the State, District or Territory to which such person has fled shall cause him to be arrested and secured, and notify the executive authority making such demand, or the *6agent of such authority appointed to receive the fugitive, and shall cause the fugitive to be delivered to such agent when he shall appear. If no such agent appears within thirty days from the time . of the arrest, the prisoner may be discharged.”

¶11Appellant has cited decisions of the U. S. Supreme Court to the effect that under the above quoted federal constitutional provision and statute, a person held by extradition proceedings may in habeas corpus show that he was not in the demanding- state when the alleged offense was committed, and that if he so proves, he is entitled to be discharged. See: Hyatt v. Corkran (1903), 188 U. S. 691, 47 L. Ed. 657, 23 S. Ct. 456; South Carolina v. Bailey (1933), 289 U. S. 412, 77 L. Ed. 1292, 53 S. Ct. 667; Innes v. Tobin (1916), 240 U. S. 127, 60 L. Ed. 562, 36 S. Ct. 290; Robb v. Connolly (1884), 111 U. S. 624, 28 L. Ed. 542, 4 S. Ct. 544; 22 Am. Jur. (Extradition), §54, p. 293.

¶12Are these decisions decisive of the question before us in the case at bar? An examination of these cases reveals that they involved solely the application of Art. 4, §2 of the U. S. Constitution and the implementing statute, and did not attempt to consider the question of whether a state may by appropriate legislation enlarge the scope of extradition beyond that provided for under federal law.3 It is therefore not surprising in these federal decisions where the demanding state based its sole right to the custody of

¶13*7the' prisoner upon the Federal Constitution and statute, that extradition should have been denied. Nor can there be any question as to the correctness of the statement of the U. S. Supreme Court in South Carolina v. Bailey (1933), supra (289 U. S. at p. 420, 77 L. Ed. at p. 1296, 53 S. Ct. at p. 670), that “it was the duty of [the state] court to administer the law prescribed by the Constitution and statute of the United States, as construed by this Court.” In the case before us, however, the extradition warrant of the Governor of Indiana recites that the proceeding is “in accordance with the requirements of the Constitution and laws of the United States and of the State of Indiana.” (Emphasis supplied.) And it is therefore apparent that if the extradition proceedings are authorized under state law and do not offend federal law, such proceedings will be sustained.4

¶14The case of Innes v. Tobin(1916), supra, relied on by appellant, while recognizing that a person extradited wiithin the purview of Art, 4, §2 of the U. S. Constitution and the implementing federal statute, must have been a fugitive from the demanding state, nevertheless held that the failure of the implementing federal statute to provide for the extradition of fugitives who did not flee into the. asylum state, was not fatal to extradition from such asylum state. (Here the fugitive had fled from Georgia to Oregon, and after being extradited from Oregon to *8Texas for a charge of murder, resulting in an acquittal, was being extradited from Texas to Georgia.) The U. S. Supreme Court in an opinion by Chief Justice White dismissed the argument that the federal statute which had failed to make provision for extradition in such circumstances was exclusive and prohibited state action, by saying (240 U. S. at p. 134, 60 L. Ed. at p. 566, 36 S. Ct. at p. 292) :

“. . . while it is undoubtedly true that in the decided cases relied upon (Kentucky v. Dennison, supra [24 How. 66, 16 L. Ed. 717] ; Roberts v. Reilly, supra,116 U. S. 80, 29 L. Ed. 544, 6 Sup. Ct. Rep. 291; Hyatt v. Corkran, supra,188 U. S. 691, 47 L. Ed. 657, 23 Sup. Ct. Rep. 456, 12 Am. Crim. Rep. 311) the exclusive character of the legislation embodied in the statute was recognized, those cases, when rightly considered, go no further than to establish the exclusion by the statute of all state action from the matters for which the statute ex- • pressly or by necessary implication provided.

“No reason is suggested nor have we been able to discover any, to sustain the assumption that the framers of the statute, in not making its provisions exactly coterminous with the power granted by the Constitution, did so for the purpose of leaving the subject, so far as unprovided for, beyond the operation of any legal authority whatever, state or national. On the contrary, when the situation with which the statute dealt is contemplated, the reasonable assumption is that by the omission to extend the statute to the full limits of constitutional power it must have been intended to leave the subjects unprovided for not beyond the pale of all law, but subject to the power which then controlled them, —state authority until it was deemed essential by further legislation to govern them exclusively by national authority. In fact, such conclusion is essential to give effect to the act of Congress, since to hold to the contrary would render inefficacious the regulations provided concerning the subjects with which it dealt. This becomes manifest when it is considered that, if the proposition now insisted upon were accepted, it would follow that the de*9livery of a criminal who was a fugitive from justice by one state on a requisition by another would exhaust the power, and the criminal, therefore, whatever might be the extent and character of the crimes committed in other states, would remain in the state into which he had been removed without any authority to deliver him to other states from whose justice he had fled.” (Emphasis supplied.)

¶15And, a fortiori, if a case of extradition falling within the express provisions of the U. S. Constitution but not embraced in an implementing federal statute, is, nevertheless, a matter proper to be dealt with by state action, certainly a case of extradition beyond the scope of the U. S. Constitution which is sought to be dealt with by state law in accordance with the spirit and purpose of federal law cannot be said to violate federal authority.

¶16The Federal Constitution and statute relating to extradition are not sufficiently broad in their scope to be applicable to the case before us for decision and there is no conflict between the federal and state law. The latter merely supplements the former and is in accord with its spirit and purpose to facilitate the extradition of persons charged with crime. The state law thus fills a void in the field of extradition not covered by federal law. It is not inconsistent with federal law, but only serves to supplement and render interstate rendition more effective. This is in accord with the spirit and intention of the Federal Constitution, which has attempted to prevent anarchy from resulting because of the early difficulties faced by the several states in their efforts to deal with crime beyond their borders.5 It should be observed that the language *10of Art. 4, §2, is affirmative in nature and' that there are no negative provisions in the Federal Constitution or statutes forbidding the extradition of one not physically present in the demanding state when the crime was committed. The grant of authority to the federal government in the Constitution of the United States exhausts its power to act, and all additional power is reserved to the states and to the people.…6

¶17It is accordingly our conclusion that ch. 49, §20 of the Acts of 1935, limiting the evidence in habeas corpus brought thereunder to the question of identity only, as held in the previous decision of this court in Taylor v. Smith(1938), supra, does not violate Art. 4, §2, cl. 2 of the Constitution of the United States.

¶18We are further of the opinion that the extradition of persons charged with crime as attempted by ch. 49 of the Acts of 1935 directly bears upon the public safety, morals, and welfare and therefore is within the state’s lawful exercise of its police power.7 The statute, when applied to the facts of this case, does not in our view violate the due process clause of the 14th Amendment of the U. S. Constitution, nor the due course of law provision of §12, *11Art. 1 of the Constitution of Indiana.8 Similarly, it does not in our opinion violate the Natural Rights Section (Art. 1, §1) of the Indiana Constitution.9

¶19As to appellant’s additional contention that ch. 49 of the Acts of 1935 has abridged his right to habeas ■corpus in violation of Art. 1, §12 of the Indiana Constitution, we believe serious doubt arises as to whether such question is properly before us on this appeal, as such question does not appear to have been raised in the trial court. However, in order that our views as to such constitutional question will not be misconstrued, we express our opinion that the legislation is not an unlawful abridgment of the right of habeas corpus. The remedy of habeas corpus is of course subject to reasonable regulation by the legislature.10 It is in the nature of a collateral attack,* 11 and appellant cannot in this case properly complain that the Uniform Extradition Act prevents him from going behind the proceedings pending against him in the demanding state.12 In fact, this Court in Gluff v. Rouls (1950), 228 Ind. 186, 188, 91 N. E. 2d 176, 177, refused in an extradition case to permit the accused in habeas corpus to go behind the proceedings in the *12demanding state to show a defense there on the merits, the Court in the opinion by Emmert, J., stating:

“ . . . these were matters of defense to be presented upon the trial of the cause in Ohio. [Citing inter alia] Section 9-488, Burns’ 1942 Replacement (§20 of Ch. 49 of the Acts of 1935,—Uniform Criminal Extradition Act).... Taylor v. Smith (1938), 213 Ind. 640, 13 N. E. 2d 954.”

¶20We find no merit in the various contentions of unconstitutionality asserted by appellant.

¶21The judgment is affirmed.