People ex rel. Weiss v. Menna

McNally, J. This habeas corpus proceeding tests the validity of relator-appellant’s detention under an executive warrant in extradition proceedings. The Governor of the State of Oregon represented to the Governor of the State of New York that relator is “ a fugitive from justice ” of the .State of Oregon. The Grand Jury of the County of Multnomah, State of Oregon, on February 26, 1965, handed down an indictment against various defendants, including the relator, charging a violation of Oregon Revised Statute 167.151 in that they did in said county knowingly disseminate an obscene motion picture entitled “ Olga’s House of Shame ”. The letter of the District Attorney for Multnomah County, dated August 30,1965, states the relator produced and directed the motion picture; it also concedes the relator was not present in the State of Oregon at the time the film was exhibited as alleged in the indictment. The warrant of the Governor of the State of New York recites, in part, that relator “ stands charged in [the State of Oregon] with having committed acts in the State of New York intentionally resulting in a crime in the State of Oregon ”. The parties have proceeded on the assumption that this proceeding is governed by section 834 of the Code of Criminal Procedure (Uniform Criminal Extradition Act) applicable to persons not present in the demanding State at the time of the commission of the alleged crime. The documents of the demanding State and the warrant under which relator is detained fail to allege the acts committed in the State of New York. The evidence of the respondent establishes that the relator produced and directed the film in the State of New Jersey under an arrangement whereby American Film Distributors Corporation, organized and existing prior thereto, of which relator is not a stockholder, director or officer, was to distribute the film and the relator was to receive 50% of its net proceeds. The film consisting of 6,231 feet was on November 23, 1964 licensed to the extent of 5;651 feet'by the State of New York, Education Department, Division of Motion Pictures. It does not appear what part, if any, of the unlicensed film was exhibited in the demanding State. [401] The court below found the distribution of the film in New York would sustain an information under section 1141 of the Penal Law of the State of New York. Subdivision 1 of section 1141 expressly provides ‘ ‘ this subdivision shall not apply to motion picture films licensed by the state department of education”. On this record it cannot be determined what part, if any, of the film distributed in the demanding State is in violation of section 1141. Regardless of the burden of proof the parties to this proceeding tendered their evidence and it is not disputed at the evidentiary level. This makes quite academic the situs of the burden of proof. The undisputed evidence is that relator produced the questioned film for distribution throughout the United States, and that, following production, he made contractual arrangements for its redistribution by an independent contractor in California. The independent contractor sold the film to persons in the demanding State where it was exhibited. The undisputed evidence further shows that relator, after the fact, admitted knowing that the film had been exhibited in the demanding State. Unlike ordinary extraditions mandated by the Federal Constitution, extradition, under the uniform act, for acts committed outside the demanding State requires that it be established that “ the acts for which extradition is sought would be punishable by the laws of this state, if the consequences claimed to have resulted therefrom in the demanding state had taken effect in this state ”. (Code Crim. Pro., § 834; cf. id., § 849.) The .proof in this record establishes only that relator had a general purpose of national distribution, and not a specific intention to introduce the film into the demanding .State; that its introduction into the demanding State was the result of the acts of an independent contractor in California (to relator’s profit, to be sure); and that relator knew at some time prior to the bringing of this proceeding that the film had been exhibited in the demanding State. The other issues as to the contraband nature of the uncut film are resolved in favor of the respondent. These facts, undisputed though they be, do not establish the crime or any crime by relator in the demanding State. The situation is no different from one when a producer of an item for national distribution sells it, and the purchaser brings it into a particular locality where its possession or use is forbidden by law, and the producer eventually learns of the illegal possession or use. • • The order should be reversed, on the law, without costs or disbursements, the writ sustained and the- relator discharged.