In re Foye

The opinion of the court was delivered by Anders, J. The appellant, John E. Eoye, applied to the superior court of King county for a. writ of habeas corpus, alleging that he was illegally restrained of his liberty by one Michael Morrissey, a police officer of the city of Boston, commonwealth of Massachusetts, and setting forth the pretense and cause of such restraint. The writ was issued and served on the respondent, Michael Morrissey, who thereupon made return thereto that the appellant, Eoye, was in his custody, at the time the writ of habeas corpus was served upon him, by virtue of a warrant issued by his excellency, the governor of this state, on a requisition of the governor of the commonwealth of Massachusetts; that the appellant was, on the first Monday of March, 1899, indicted by a grand jury duly impaneled and sworn in the county of Suffolk, in the commonwealth of Massachusetts, for the crime of corrupting a juror in the trial of a certain cause before the superior court of said commonwealth in said county, wherein the commonwealth was plaintiff and one Mulray and one Scollins were — 252 — defendants; that, immediately after the return of said indictment, the petitioner left the commonwealth of Massachusetts and fled to the state of Washington; that a warrant was issued on said indictment, and that the sheriff to whom it was directed made return thereon that he was unable to find the petitioner in said county; that petitioner is a fugitive from justice and has taken refuge in the state of Washington; that the respondent was duly appointed by the governor of Massachusetts as agent to receive and convey the petitioner to that commonwealth for trial upon said indictment; that the governor of Massachusetts duly made a requisition upon the governor of the state of Washington for the rendition of the petitioner as a fugitive from justice, which requisition was accompanied by a copy of the indictment and of the warrant aforesaid, duly certified as authentic by the said governor of Massachusetts; that, in compliance with said demand and requisition, the governor of the state of Washington issued his warrant, pursuant to law, authorizing the respondent to take and transport the-petitioner from the state of Washingtpn. A copy of the warrant of extradition, together with copies of the requisition of the governor of Massachusetts, and all proceedings in the court of that commonwealth in the premises, were attached to, and made a part of, the return. The petitioner traversed the return by a reply in which he alleged that he did not leave the state of Massachusetts and take refuge in the state' of Washington; that hé has resided in the state of Washington for the period'of one year last past and during that time has been engáged in business 'in the state, and is a citizen thereof; that he denies having any connection, either directly or indirectly, with the bribing of a juror in the commonwealth of Massachusetts; that he is not acquainted with Charles H. Millikan of Chelsea in the county of Suffolk, who acted as a juror in the case of Commonwealth v. Eichard Mulray — 253 — and Thomas Scollins; that the return of Michael J. Morrissey does not allege that the acts complained of were done before a court of competent jurisdiction, nor is there any showing that the grand jury who indicted petitioner were legally drawn and impaneled to find said indictment; nor does it show that the grand jury who returned the indictment were sworn to perform their duties as grand jurors; that the indictment made a part of the return of said Morrissey does not st^ate an offense punishable under the laws of Massachusetts or the laws of Washington; nor does it allege facts sufficient to constitute a crime; that said indictment is not properly certified to by the court; -that there is no allegation in the said return showing that the petitioner herein fled from justice; that petitioner was not in the commonwealth of Massachusetts at the conclusion of the trial of the case of Commonwealth v. Mulray and Scollins, and that no indictment was returned against him previous to his departure from the commonwealth of Massachusetts, nor had any complaint been filed against him; that the alleged prosecution of this case is founded on the statement made by one David C. Sullivan, who was charged with the crime of perjury in connection with the case of Commonwealth v. Mulray and Scollins; that the testimony of said Sullivan at the trial of Millikan is annexed hereto and marked as an exhibit, as is also the testimony of said' Millikan, who is referred to in the indictment found against petitioner, and that the return of Morrissey does not show tliat any sworn evidence was produced to his excellency, the governor of Washington, as required by the laws of Massachusetts. Upon the issues presented by the return and traverse thereto, a hearing was had before the Hon. Orange Jacobs, one of the judges of the superior court of King county, in which judgment was rendered remanding the petitioner to the custody of the respondent, as agent of the common — 254 — wealth of Massachusetts. From this judgment the petitioner has appealed to this court. The learned counsel for the respondent moves to dismiss the appeal on the ground that this court has no' jurisdiction to entertain this proceeding. It is claimed by counsel that, inasmuch as the statute relating to habeas corpus does not specially provide for appeals from judgments rendered therein, such judgments are not subject to review by this court. Several authorities are cited in support of counsel’s contention, among which is Ohurch on Habeas Corpus, in which it is said that the prevailing doctrine in the state courts, in the absence of statutory provisions, is that a judgment remanding a prisoner on habeas corpus is not appealable, or subject to review, and that the doctrine of res judicata has no application to such a case. Church, Habeas Corpus (2d ed.), § 386. It must be conceded that the majority of the courts which have passed upon the question have announced the doctrine contended for by counsel for the respondent; but there have been many cases in which a contrary view has been maintained. See 9 Enc. PI. & Pr., pp. 1072, 1073, and cases cited. The courts which have denied the right of appeal in habeas corpus proceedings have usually proceeded upon the theory that a judgment in such a case is not final in its character, and that the petitioner had the right to exhaust the judicial power of the state by applying successively to all of its courts. But, under our statutes, we think the judgment in habeas corpus proceedings is a final judgment and therefore subject to review upon appeal. Our statute in relation to appeals to the supreme court is very broad and comprehensive, and it is provided in the first section thereof that “any party aggrieved may appeal to the supreme court, in the mode prescribed by this act, from any or every of the following determinations, and no — 255 — others, made by the superior court or a judge thereof in any action or proceeding;” and it must be admitted that habeas corpus is either an action or a proceeding. It is classed in the code as a special proceeding, and the law declares that “a judgment in a special proceeding is a final determination of the rights of the parties therein.” Bal. Code, § 5139; Laws 1895, p. 115. In view of these provisions, there seems to be no escape from the conclusion that an appeal will lie from such a judgment in this proceeding. The motion to dismiss is therefore denied. At the time the learned judge of the superior court remanded the appellant to the custody of the agent appointed by the governor of Massachusetts, he also made an order granting a supersedeas and admitting appellant to bail pending this appeal. Respondent now moves this court to racate and set aside the orders last mentioned, and we are of the opinion that this branch of the motion must be granted. Neither the constitution of the United States nor the law of Congress pertaining to the subject of extradition, nor any law of this state, authorizes the giving of bail in habeas corpus proceedings in extradition cases. It is true that our statute provides that the writ may issue for the purpose of admitting a party to bail who is charged with an offense against the laws of this state, but that statute is wholly inapplicable to cases where a party is in custody by virtue of an extradition warrant. As was well said in the case of Ex Parte Erwin, 7 Tex. App. 288, to permit one arrested as a fugitive from justice to go at large upon bail would be to put him in a situation to “defy the mandate of the court and treat its judgment with contempt.” If this were an ordinary' action, it would not be set down for hearing upon the merits until the regular October session of this court, but, owing to the purpose, object and character of the writ of habeas corpus, we have come to the — 256 — conclusion, after mature deliberation, that it is our duty to proceed, as the statute indicates, in a “summary way,” and determine the rights of the appellant at this time. The return to the writ is full and specific, and we must look to it and the reply thereto for the issuable facts in the case. The entire record is before us, and we are unable to perceive how the rights of the appellant can in any way be infringed or impaired by a speedy determination of the questions involved. If he is in fact illegally restrained of his liberty, he is entitled to an immediate discharge. But, on the contrary, if he is not so restrained, public justice requires that he should be at once remanded to the custody of the agent of the state of Massachusetts. The constitution of the United States ordains that 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 dtelivered up to be removed to the state having jurisdiction of the crime. Const. U. S., art 4, § 2. This .provision not being self-executing, Congress, on February 12, 1793, passed an act to carry it into effect, the substance of which is now embodied in § 5278 of the Revised Statutes and which is as follows: “ 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, and to cause notice of the arrest to be given to the executive authority making such demand, or to the agent of such authority appointed to — 257 — receive the fugitive, and to cause the fugitive to he delivered to such agent when he shall appear. If no such agent appears within six months from the time of the arrest, the prisoner may be discharged. All costs or expenses incurred in the apprehending, securing and transmitting such fugitive to the state or territory making such demand, shall be paid by such state or territory.” These provisions constitute the law applicable to the extradition of fugitives from justice, and all that the courts can do on habeas corpus proceedings is to determine whether the conditions prescribed by the constitution and laws of Congress have been complied with. It will be observed that there are three things requisite in order to authorize the executive authority of a state to extradite a fugitive from justice, and they are these: Eirst, the accused must be demanded as a fugitive from justice by the. executive of the state from which he fled; second, such demand must be accompanied by a copy of an indictment found, or an affidavit made, before a magistrate charging the fugitive with having committed a crime in the demanding state; and third, such copy of the indictment or affidavit must be certified by the executive of the demanding state to be authentic. An extradition warrant, in order to be valid, should show upon its face a compliance with these requisites and necessary conditions. In this instance the warrant, or mandate, issued by the governor of this state, recites: “ Whereas, it has been represented to me by His Excellency Roger Wolcott, Governor of the State of Massachusetts, that John E. Eoye stands charged in said state with the crime of corrupting a juror by giving a bribe committed in the County of Suffolk in said state and is a fugitive from the justice of said state and has taken refuge in the State of Washington; And whereas, the said Governor of the Staite of Massachusetts has pursuant to the constitution and laws of the — 258 — United States demanded of me that I cause the sáid John E. Eoye to be arrested and delivered .to Michael J. Morrissey, agent authorized to receive him into their custody and convey him back to said State of Massachusetts; And, whereas, said representation and demand are accompanied by affidavits, complaint, information, indictment and warrant whereby the said John E. Foye is charged with the said crime and being a fugitive from the justice of the said state and having taken refuge in the state of Washington, which are certified by said Governor of Massachusetts to be duly authenticated. Eow, therefore, I, J. R. Rogers, Governor of the State of Washington, do hereby authorize and empower Michael J. Morrissey, the agent named in said demand, to take the said John E. Foye wherever he may be found in this state, and transfer him to the line thereof at the expense of the said Commonwealth of Massachusetts. And I hereby command all civil officers within the said State of Washington to afford all needful assistance for the execution of this warrant;” etc. An inspection of this warrant will show that it recites all of the conditions requisite to its issuance, and the exhibits accompanying the same, and set forth in the return, show the existence of every fact recited in the warrant. In fact this warrant is hardly subject to criticism. It is substantially similar to the one held to be sufficient in People v. Donohue, 84 N. Y. 438 ; and none of its recitals are disputed or disproved by appellant. It follows, therefore, that appellant is not illegally restrained of his liberty, and the judgment of the lower court is therefore affirmed, and it is ordered that the same be forthwith executed. Gordon, C. J., and Dunbar, Fullerton and Reavis, JJ., concur.