People ex rel. Leven v. Allen

Appeal from so much of an order as dismisses a writ of habeas corpus and remands appellant to the custody of the Sheriff of Westchester County. Appellant is detained under a warrant issued by the Governor of New York upon the demand of the Governor of Georgia for the apprehension and deliverance of appellant as a fugitive from justice. Appellant contends that the demand for extradition is insufficient under section 830 of the Code of Criminal Procedure, in that (1) the indictment does not bear the signature of the foreman of the Grand Jury, (2) the indictment was not returned in open court and entered on the minutes, and (3) the indictment is not authenticated by the executive authority making 1057 the demand. Order, insofar as appealed from, unanimously affirmed, without costs. It appears from the record that there is no factual basis for appellant’s contentions that the indictment does not bear the signature of the foreman of the Grand Jury and that the indictment is not authenticated by the Governor of Georgia. While it seems that an indictment which has not been returned in open court is insufficient under the law of Georgia (Zugar v. State, 194 Ga. 285; Bowen v. State, 81 Ga. 482; Sampson v. State, 124 Ga. 776), the fact and the legal effect thereof are to be determined by the Georgia court. (Cf. People ex rel. Reid v. Ruthazer, 4 A D 2d 164.) Present — Wenzel, Acting P. J., Beldock, Ughetta, Hallinan and Kleinfeld, JJ.