Ex Parte Innes

HARPER, Judge. This is a companion ease to that of Victor EInnes, this day decided, and the facts are identical. There can be no-question that relator is a fugitive from justice. She is charged with, crime alleged to have been committed in the State of Georgia, and she fled from that State, but it is insisted that she fled to the State of Oregon and had her residence in that State, and the Governor of that State might honor a requisition, yet the Governor of Texas could not do so because her presence in this State is not voluntary—that she had not fled tp this State for an asylum. The only question we think it necessary to discuss is, did the Governor of Texas have authority in law to grant the requisition and order her to be delivered to the Georgia, authorities F The record discloses that she did not come into this State-voluntarily, but .that being charged with crime, alleged to have been, committed in Bexar County, the Governor of Texas issued a requisition on the Governor of Oregon, who honored same, and she was in Texas by reason of being brought here on that requisition. When tried for the offense with which she was charged in Bexar County, she was acquitted. It then developed that while she was in jail in Bexar County the Governor of Texas had granted a requisition from the Governor of Georgia, and instead of being discharged from custody she was immediately arrested on the requisition. A writ of habeas corpus was sued out before Judge Anderson, who refused to release her, and ordered her turned over to the Georgia authorities to be conveyed to that State to-be tried for the offense with which she is charged in that State. From that order relator has appealed to this court, and makes the contention that as she was brought here from Oregon by the officers, the Governor of this State has no authority to grant a requisition. This is a question that has been before the courts of this country but a few times, and the decisions are not entirely in harmony. Mr. Spear, in his work on Extradition, sustains the contention of relator, and bases his reasoning mainly on the wording of the United States statute, *353 which reads as follows: Sec. 5278, U. S. Rev. Stat. “Whenever the executive authority of any State or Territory demands any person as a fugitive from justice, of the executive authority of any State 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, it shall be the duty of the executive authority of the State or Territory to which such person has fled to cause him to be arrested and secured,” etc. It will be noticed that this statute requires the requisition to be issued by the Governor of the State from which the person has fled, and it has been held, as contended by Mr. Spear, in almost an unbroken line of decisions, that unless a person was in the State at the time of the commission of the offense and subsequently left that State, such person can not be extradited under the above statute and the provisions of the Federal Constitution. However, this rule of law need not be herein discussed, for it is unquestioned that relator was in the State of Georgia at the date of the alleged offense, and subsequently left that State and went to Oregon, from which State she was brought to Texas by extradition process. It is contended that as this construction has been given to those words in the statute and the Constitution, that the same construction ought to be given to the words “to the State to which she has fled,” and unless one has voluntarily gone into a State, the Governor has no authority to grant a requisition. The Federal Constitution contains no such qualification, and provides instead: “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 cause.” Relator admits that the constitutional provision has no clause which limits the right to honor the requisition to the chief executive of the State to which the prisoner has fled, but instead uses the words, in which he may be found, yet the insistence is made that this clause of the Constitution is not self-executing, and, therefore, we must look alone to the statute enacted thereunder, and as this statute contains the qualifying words “to which he has fled,” the power to honor a requisition is limited to the chief executive of a State to which such ^erson may voluntarily go. In support of Ms text Mr. Spear cites but one authority, that of Daniel’s case, which came before judge Parsons, of the Quarter Sessions Court in Philadelphia, in 1848, the court holding, Judge Binns rendering the decision, “Where a defendant is brought into a State as a fugitive from justice he can not be surrendered to the authorities of another State as a fugitive, but mast be allowed an opportunity to return to the *354 State in which he is domiciled.” While this is the only authority cited by Mr. Spear, yet it may be said in support of that doctrine, the Governor of Hew York, in 1889, refused to grant a requisition under such circumstances. James Hope was charged with crime in Hew York, and the Governor of California honored the requisition of the Governor of Hew York. Hope was .tried and convicted. After having served the term of punishment assessed, the Governor of Delaware issued a requisition and asked the Governor of Hew York to surrender Hope to that State to be tried for a crime for which he stood charged in that State. The Governor of Hew York refused to grant the requisition, basing his ruling on that line of cases in which it was held that where a person has been extradited from one State to another on a particular charge, that he could only be .tried for that offense and no other offense. This rule has never been adhered to in this State, but on the other hand the reverse has been specifically held in this State. In the case of Ham v. State, 4 Texas Crim. App., 645, this court held: “Suppose, then, as in the case at bar, he is surrendered and extradited, can he be tried for any other offense than the one for which he was extradited? Where is the prohibition? Good faith and comity leave that entirely to the discretion of the State which had the right to demand him for any crime which he committed, and which, having once rightfully obtained jurisdiction of his person, is only limited in her treatment of him to the responsibility of seeing that the same privileges and immunities which her laws would afford to one of her own citizens are extended and guaranteed to him. “Since the able briefs, both of the learned counsel for the appellant and Attorney General Boone, for the State, were prepared in this case, this identical question here discussed was submitted fin the matter of Hoyes/ upon habeas corpus, before the "(Jnited States District Court for the District of Hew Jersey, May 27, 1878, and it was held that ‘a fugi"tive from justice, extradited, under the Act of Congress, from one State in the Union, on the charge of the commission of a specific crime, can be held by the courts of the State to which he is surrendered for trial for another and different crime/ Hixon, J., delivering the opinion in that case, most pertinently and pointedly remarks: ‘But here a court of competent jurisdiction has the custody of a person who is' charged with the commission of certain offenses against the laws of the State. The answer to the charge is, that some other person has done a wrong to the prisoner by violating the laws of another State in arresting him without proper authority. In a criminal case this can hardly be reckoned a pertinent response. It is a claim on the part of the accused that his criminal violations of the law are to be condoned by his personal injuries. It is asking the court to suspend its responsible duties, towit, the trial of offenders against the Penal Code of the State, while the persons charged with the crime are instituting preliminary investigations into the methods adopted to bring them within its jurisdiction. Such a course, for obvious reasons, is allowable in a civil suit between private litigants; but, for like obvious reasons, can not be, and never *355 has been, allowed in criminal proceedings, where the object of the prosecution is to punish the offender against the public.” This rule has been adhered to in Baker v. State, 43 Texas Crim. Rep., 281; Brookin v. State, 26 Texas Crim. App., 121, and has the sanction of the Supreme Court of the United States. Lascelles v. Georgia, 148 U. S., 537. In 19 Cyc., 97, it is said: “Although there has long been a conflict in the decisions of courts of the several States, it is now generally accepted that a fugitive from justice, surrendered by one State upon the demand of another, is not protected from prosecution for offenses other than that for which he was surrendered, but may be tried for any crime committed in the demanding State either before or after extradition,” citing Carr v. State, 104 Ala., 4; Lascelles v. State, 90 Ga., 347; State v. Kealy, 89 Iowa, 94; Commonwealth v. Wright, 158 Mass., 149; State v. Walker, 110 Mo., 467; Petry v. Leichger, 47 Neb., 126; People v. Cross, 135 N. Y., 536; State v. Stewart, 60 Wis., 587; State v. Glover, 112 N. C., 896. So it is seen that the rule relied on by the Governor of New York in the Hope case is not only contrary to the rule in Texas, but is opposed to the great weight of authority, and is even no longer the rule in New York. People v. Cross, supra, and is entitled to but little, if any, weight, in passing on the question involved in this case. The Daniel’s ease relied on by Mr. Spear to sustain his text was not rendered by a court of final resort, but only a court of Quarter Sessions, and is entitled to only such weight as its reasoning may justify. In opposition to the doctrine therein announced, we find the question of surrender to a third State was before the courts in Illinois in 1879, in the ease of People ex rel. Suydam v. Sennott: “The facts in the case of Sennott are that, having committed a crime in Pennsylvania, he went first to West Virginia, where he remained a while, and then to Chicago, in the State of Illinois, where he resided for about two years. He then left Chicago and went to New York, from which State he was brought back to Illinois on a ’ charge of crime there committed. After his return he was discharged on habeas corpus; but he was immediately rearrested on a warrant issued upon a requisition of the Governor of Pennsylvania demanding his rendition for the crime' committed in that State. An application was at once made to Judge McAllister, of the Circuit Court of Cook County, Illinois, for the discharge of the prisoner on habeas corpus. The ground chiefly relied upon was that he had not fled to Illinois; but was brought there against his will. It was contended that under the Act of 1793 he must have fled to Illinois. The court said that the Constitution of the United States provided for the surrender of persons ‘who shall flee from justice and be found in another State.’ The Act of Congress says: ‘Whenever the executive authority of any State or Territory demands any person as a fugitive from justice of the executive authority of any State or Territory to which such person has fled.’ The court said a point *356 was made of the difference in language, but if the Constitution and the Act differed the former must prevail. “‘It seems to me/ said Judge McAllister, ‘to be a fair interpretation of the constitutional provisions, that the other requisites being supplied, it is only necessary, to justify the arrest under the executive warrant, that the person should be a fugitive from the justice of the demanding State, and be found in the State where the warrant issued. I, therefore, do not concur in the position that the relator can not be amenable to such warrant, unless he had fled to this State, and remained here as such fugitive at the time of his arrest. Having committed the crime in Pennsylvania, and then departed the State, he is to be regarded as a “fugitive from justice,” so long as he keeps out of the State, and subject to the extradition laws, unless that State has lost its right to demand him by her own laches. The executive warrant in these cases is a criminal process, and when he was discharged from imprisonment under the proceedings by which he was brought here, by what rulé of law, if he was here as a fugitive from justice, he could be exempt from such process, I confess myself unable to understand. The Governor was under no duty to return him to Hew York, or guarantee a safe return. He might be privileged from arrest on civil process by a well settled rule of law, but not from a criminal one. Ho such privilege is known to the law. The only requisites of a case, under the Constitution and laws are: (1) The person demanded must be charged in some State with treason, felony, or other crime. (2) He must be a fugitive from justice, because he is expressly described as one who shall flee from justice, and who is to be delivered upon demand of the executive authority of the State from which he fled. (3) He must be found in another State than the one in which the crime is charged to have been committed.’ “The court accordingly dismissed the writ, and remanded the prisoner into custody. He then obtained another writ of habeas corpus from Judge Drummond, of the Hnited States Circuit Court for the Horthern District of Illinois. Judge Drummond took the same view of the matter as Judge McAllister, and Sennott was taken back to Pennsylvania. “The same question was considered" by the Supreme Court of Indiana in 1886, in the following case: A person committed a crime in Michigan and fled to Indiana, where he was arrested and held in custody from December 12, 1884, till September 12, 1885, on an indictment for a crime committed in the latter State. On December 29, 1884, the Governor of Indiana, upon the requisition of the Governor of Michigan, issued a warrant for the prisoner’s arrest and rendition. This warrant was not then executed owing to the fugitive’s being held for trial in Indiana for a crime there committed. On September 12, 1885, he escaped from jail and fled to Ohio, from which State he was brought back to Indiana by regular rendition proceedings. He was then held in custody until April, 1886, .when a nolle prosequi was entered. He was then arrested on the warrant of rendition, and claimed that, having *357 been brought into Indiana from Ohio by ‘extradition’ proceedings, he could not be delivered up to the State of Michigan without an opportunity to return to Ohio. The court held otherwise.” In commenting on this case Mr. Moore, in his work on Extradition, says: “In so doing it laid much stress on the fact that the fugitive originally came voluntarily into Indiana, and should not by reason of his flight from the State be placed in a better position than if he had not fled. This, the court said, distinguished it from most of the other cases. The force of this reasoning may be doubted. If it be held that a fugitive can not be permitted to derive any advantage from his flight, the rule that he can not be tried for an offense other than that for which he was surrendered must be rejected. This rule applies only to offenses committed previously to extradition, and, practically, previously to flight. It is not doubted that a fugitive may be tried for an offense committed subsequently to his extradition. The fact that he is within the jurisdiction as an extradited person does not'exempt him from obedience to the laws. But the distinction noted by the court may be thought to be open to another objection. It assumes that in order to be a fugitive from 'justice, the criminal must have come voluntarily into the State from which his surrender is demanded, or have sought asylum there. For, it is to be remembered that when he was brought into Indiana on rendition process it was from Ohio, and he could not, therefore, allege on that ground that he did not flee from Michigan. As a rule, proof of seeking asylum is not necessary under treaties; and it certainly is not so in rendition under the Constitution, which only requires that he shall be ‘found.’ He may be inveigled or deceived into coming into the jurisdiction, or may be there as the result of casualty. It has been held that even the employment of legal processes or of illegal violence invests him witli no personal privilege which he can set up as against the demands of justice, unless, where legal processes are employed, the .law confers upon him such immunity. Such immunity the court did not hold to exist in interstate rendition. On the contrary, it referred with disapproval to the case cited from Binns, Justice, to the effect that a person delivered up by one State to another can not be given up to a third State without having had an opportunity to return to that which surrendered him. The court observed that that case was decided by the Court of Quarter Sessions of Philadelphia, and was, therefore, of little authority, and cited against it the opinion of Chief Justice Gibson in Dows’ case. The decision of the Supreme Court of Indiana may, therefore, be held to have involved the rejection of the theory that, where one of the Hnited States obtains possession of a criminal by rendition proceedings, it holds him for the sole purpose of trying him on the charge upon which he was given up.” After commenting on the above cases, Mr. Moore on Extradition, section 646, says: “Considering the case solely from the point of view of the prisoner, of what right can it be said that he is deprived by his delivery up to a third State? It is not his right to have the question of his surrender determined by the Governor of any particular *358 State. That question is, under the Constitution, to be determined in any State in which he may be ‘found/ This does not mean that, having once been found in a certain State, he is entitled thereafter to have the question of his rendition for all prior offenses determined by the Governor of that State, until he shall have- left its jurisdiction voluntarily. Yet this is precisely what is signified by the right of return to the jurisdiction of the surrendering State, as held to exist in extradition cases; the reason being that the fugitive, when recovered, was under the protection of the surrendering nation. This principle possesses m> relevancy to the States of the United States.” Relator also relies on the case of Hyatt v. New York, 188 U. S., 691. In that-case the question presented in this case was not involved, but the sole question presented and decided was, that Hyatt not having been in Tennessee at the time of the alleged commission of the offense charged, he was not a fugitive of justice from Tennessee—that not having been in the State he had not fled from it, and the question of whether one who has fled from a State after the alleged commission of an. offense and been extradited from one State to another, can then be extradited to a third State was not discussed or mentioned, consequently that case can not be held to decide any question here involved. So far "as the authorities go, we have the Daniel’s case, decided by the Quarter Sessions Court of Philadelphia, and Mr. Spear on Extradition, holding that one can not be extradited to a third State on the one hand, and we have the cases of Suydam v. Sennott, decided by the Illinois courts, and then by Judge Drummond of the United States-Circuit Court; the case of Hackney v. Welsh, decided by the Supreme Court of Indiana. (107 Ind., 253), and Mr. Moore on Extradition, holding that a person who has been brought into a State by force can be-extradited to a third State. Church, in his work on Habeas Corpus, section 472, holds: “A fugitive brought by requisition from another State may be surrendered to-a third State.” Cyc., volume 19, page 99, says the rule is that “as a State to which a person has been illegally brought may. hold him to answer for his offenses against it, it may arrest and surrender him on extradition proceedings to answer for his offenses against another State.” And in Brown’s case, 28 Fed. Rep., 653, in which case Brown had committed an offense in Pennsylvania and fled to Canada, he was induced by duplicity and fraud to go into Hew York temporarily, and was-arrested. It was held that the Governor could and should honor the requisition of the Governor of Pennsylvania. So it may be said that the weight of- authority sustains the action of Governor Colquitt in granting the requisition in this case, and his act was not illegal. Again, 19 Cyc., 85, says: “As the Constitution, however, applies only to fugitives from justice, a State may in the exercise of its reserved sovereign power provide for the surrender of persons indictable for crime, in another State, but who have never fled from it.” And this rule is supported by State v. Hall, 115 N. C., 811, and In re Mohr, 73 Ala.,. 503, and other cases, and we see no reason why such is not a sound *359 proposition of law. Before the forming of the Union each State was. a separate and independent sovereignty, and in forming the Union they parted with only such sovereign power as was ceded to the general government—all other powers of sovereignty inherent in them was reserved to each State, and we can see no good reason why a State can not provide for the surrender of persons charged with crime in a sistér State not provided for in the cession to the Federal government or in furtherance of the ceded power. Our State has provided in article 1088, C. 0. P.: “A person charged in another State or Territory of the United States with treason, felony or other crime, who shall flee from justice and be found in this State,' shall, on demand of the executive authority of the State or Territory from which he fled, be delivered up to be removed to the State or Territory having jurisdiction of the crime.” .When relator was indicted in Georgia, and the authorities of that State ascertaining that she had fled from that State, began to look for her they found her in Texas. To what State could or should they apply for her extradition but the State of Texas? Ho other State had jurisdiction of her person at that time, and no other could at that time grant extradition process. The rule stated by Mr. Spear that “as she was brought here on extradition, if she chooses to stay here and does stay here, Georgia would have no means of getting possession of her person and bringing her to justice for an offense committed in that State,” we do not believe to be the law, for it would nullify and render ineffective the plain intent and purpose of the States in ceding authority to the Federal government the right to provide for extradition of persons charged with crime from one State to another State. It was not intended to create an asylum under circumstances from which a person charged with crime could not be extradited, but the reverse is true, that no asylum should be provided by any State or Territory. The language of óur statute is in- accord with the provisions of the-Federal Constitution, is violative of no provision thereof, and specifically grants to the Governor of this State the authority to issue the requisition whenever a person charged with crime in another State is- found within the borders of this State, and our Governor having acted in conformity with and under the authority of the statutes of this State,, which are in accord with the Federal Constitution, we are of the opinion he committed no error in honoring the requisition, and the relator is remanded. The judgment is affirmed. Relator remanded. [Pending on writ of error in U. S. Supreme Court.—Reporter.]