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Lawskills.com Georgia Caselaw
MCFARLIN v. SHIRLEY, Sheriff.
18184.
Habeas corpus. Before Judge Allen. Stephens City Court. January 29, 1953.
HEAD, Justice.
1. "When in the trial of a habeas corpus case, it appears that the respondent holds the petitioner in custody under an executive warrant based upon an extradition proceeding, and the warrant is regular on its face, the burden is cast upon the petitioner to show some valid and sufficient reason why the "warrant should not be executed. The presumption is that the Governor has complied with the Constitution and the law, and this presumption continues until the contrary appears." Blackwell v. Jennings, 128 Ga. 264 (2) (57 S. E. 484).
2. While the evidence offered by the petitioner in the present case can not be held, as a matter of law, to be sufficient to overcome this presumption, the respondent having tendered in evidence, over proper objections of the petitioner, the requisition of the Governor of the State of South Carolina without "a copy of an indictment found or an affidavit made before a magistrate" (18 U. S. C. A., 3182), the respondent in effect contradicted the prima facie showing made by the warrant alone, and thus showed that the petitioner was being illegally restrained, in that the warrant was not based on a valid requisition. The trial court, therefore, erred in remanding the petitioner to the respondent.
G. A. McFarlin filed his petition for writ of habeas corpus to the Judge of the city Court of Stephens County, alleging that he was being illegally restrained of his liberty by the sheriff of that county, the pretense of his restraint being an extradition warrant issued by the Governor of Georgia upon a request from the Governor of South Carolina. He asserted that the purpose of the proceeding was the collection of a debt from the petitioner, and that such prosecution is in violation of the Constitution of the State of Georgia, article 1, section 1, paragraph 21 (Code, Ann., 2-121). He further asserted that the act of 1951, approved February 21, 1951 (Ga. L. 1951, pp. 726-737, Code, Ann. Supp., Chapter 44-4), and particularly 20 of that act (Code, Ann. Supp., 44-420), is contrary to the Constitution of Georgia, which declares that "the legislative, judicial and executive powers shall forever remain separate," in so far as the act of 1951 delegates, or attempts to delegate, to the Governor judicial power or authority.
The sheriff in his response alleged that he was holding the petitioner under a warrant issued by the Governor of Georgia.
On the hearing the respondent tendered in evidence the following requisition: "The State of South Carolina--Executive Department--Office of the Governor.
"To All To Whom These Presents Shall Come, Greeting; whereas, I have this date issued requisition papers for the extradition of one G. A. McFarlin, wanted in Anderson County, South Carolina, on the charge of obtaining property by false pretense.
"And Whereas, Agreeably to the provisions of the Constitution of the United States, and an Act of Congress passed the Twelfth day of February, One Thousand Seven Hundred and Ninety Three, I have made demand for His Excellency the Governor of Georgia for the delivery of the said G. A. McFarlin as fugitive from justice; and have also, in pursuance of the power vested in me by law, Appointed, and by these Presents I do appoint and Commission Robert Meeks, Deputy Sheriff, Anderson, S. C., Agent, on the part of this State, for the purpose of bringing the said G. A. McFarlin to this State, having jurisdiction of the crime aforesaid, whenever the Governor of said State of Georgia shall cause him to be delivered up, agreeably to the requisition aforesaid.
"These Are, Therefore, To request and require all persons to permit the said Robert Meeks, Deputy Sheriff, Anderson, S. C., to receive and secure the said G. A. McFarlin and bring him unmolested into this State, having jurisdiction of said crime.
"Given under my hand and the Seal of the Executive Department, at the Capitol, in Columbia, this 1st day of December, in the year of our Lord One Thousand Nine Hundred and Fifty-Two, and of the Independence of the United States of America the One Hundred Seventy-Seventh.
By the Governor The petitioner objected to the admission of this requisition as evidence against him on the ground that it was not accompanied by the papers referred to therein, and did not carry the necessary proof that the petitioner had committed any crime in the State of South Carolina. The objection was overruled and the requisition admitted in evidence.
The respondent then introduced in evidence a warrant from the Executive Department of the State of Georgia, as follows:
"Executive Department--The State of Georgia--The Governor of the State of Georgia--To All the Sheriffs and Constables Thereof---Greeting:
"Whereas, His Excellency Honorable James F. Byrnes, Governor of the State of South Carolina, and as the Executive authority thereof, has demanded of me G. A. McFarlin, a Fugitive from Justice from the said State, and had produced to me a Requisition, accompanied by supporting documents, charging the said Fugitive from Justice with having committed in the said State the crime of obtaining property by false pretense which documents are duly certified as authentic by His Excellency, the Governor of the said State, and has also appointed and commissioned Robert Meeks, Deputy Sheriff, Anderson, S. C., Agent on the part of the said State, to receive the said Fugitive from Justice from the civil authorities of this State to the end that he may be carried to the said State, there to be dealt with according to law.
"And, Whereas, It is suspected that the said Fugitive from Justice is now within jurisdictional limits of this State:
"Now, In accordance with the provisions of an Act of Congress, passed 12th February, 1793, respecting Fugitives from Justice, and in order that the said Fugitive from Justice may be brought to trial for the offense for which he stands charged:
"You Are Hereby Commanded To arrest and deliver the said Fugitive from Justice to the said Agent, for the purpose of being carried to the said State within whose jurisdiction said offense is alleged to have been committed. And I moreover charge and require all Officials, both Civil and Military, in this State, to be vigilant in endeavoring to apprehend the said Fugitive from Justice.
"Given under my hand and the seal of the Executive Department, at the Capitol, in the City of Atlanta, the 23rd day of December, A. D.,", 1952, and of the Independence of the United States of America, the One Hundred and Seventy-Seven.
Herman E. Talmadge, Governor.
(Official Seal)
"By the Governor--William H. Kimbrough, Secretary Executive Department."
The petitioner objected to the introduction of this warrant on the ground that it was not accompanied by the papers referred to therein and did not carry the necessary proof that the petitioner had committed any crime in the State of South Carolina. The objection was overruled and the paper admitted in evidence.
After hearing evidence (none of which is germane to the rulings here made)", the judge remanded the petitioner to the custody of the respondent. The petitioner excepted to the rulings made by the trial judge set out in his bill of exceptions, and to the judgment remanding him to custody.
The primary law governing extradition proceedings is found in the Constitution of the United States, and the acts of Congress passed in pursuance thereof. Constitution of the State of Georgia, article 12, section 1, paragraph 1 (Code, Ann., 2-8001); Barranger v. Baum, 103 Ga. 465, 472 (30 S. E. 524).
The Constitution of the United States, article 4, section 2, paragraph 2 (Code, 1-403), provides as follows: "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."
The Federal statute which implements this constitutional provision is in part 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, 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, . . ." 18 U. S. C. A., 3182.
This statute is specific in detailing the evidence to be presented to the executive authority of the asylum State. It must be "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." See 35 C. J. S. 332, 14.
In Roberts v. Reilly, 116 U. S. 80, 95 (6 Sup. Ct. 291, 29 L. ed. 544), it was stated: "It must appear, therefore, to the governor of the State to whom such a demand is presented, before he can lawfully comply with it, first, that the person demanded is substantially charged with a crime against the laws of the State from whose justice he is alleged to have fled, by an indictment or an affidavit, certified as authentic by the governor of the State, making the demand; and, second, that the person demanded is a fugitive from the justice of the State the executive authority of which makes the demand. The first of these prerequisites is a question of law, and is always open upon the face of the papers to judicial inquiry, on an application for a discharge under a writ of habeas corpus." See, also Hyatt v. People ex rel. Corkran, 188 U. S. 691, 709 (23 Sup. Ct. 456, 47 L. ed. 657).
In Compton v. Alabama, 214 U. S. 1, 6 (29 Sup. Ct. 605, 53 L. ed. 885), it was held: "Undoubtedly, the statute [now 18 U. S. C. A., 3182] does not make it the duty of a Governor to issue a warrant for the arrest of an alleged fugitive from justice, unless the executive of the demanding State produces to him either a copy of an indictment against the accused in the demanding State or an affidavit before a magistrate of such State charging the fugitive with the commission of crime in the State making the demand. It is, we think, equally clear that the executive of the State in which the fugitive is at the time may decline to honor the requisition of the Governor of the demanding State if the latter fails to furnish a copy of an indictment against the accused, or of any affidavit before a magistrate. But has the executive of the State, upon whom the demand is made for the arrest and extradition of the fugitive, the power to issue his warrant of arrest for a crime committed in another State, unless he is furnished with a copy of the required indictment or affidavit? We are of opinion that he has not, so far as any authority in respect to fugitives from justice has been conferred upon him by the statute of the United States. The statute, we think, makes it essential to the right to arrest the alleged fugitive under a warrant of the executive of the State where the alleged fugitive, is found that such executive be furnished, before issuing his warrant, with a copy of an indictment or an affidavit before a magistrate in the demanding State, and charging the fugitive with crime committed by him in such State." (Italics ours.)
In Deering v. Mount, 194 Ga. 833 (22 S. E. 2d, 828), in a habeas corpus proceeding brought by a relator held under an extradition warrant, the requisition was supported by an affidavit made before a notary public of the demanding State who was not a "magistrate." It was held in that case that the affidavit was insufficient to give the executive of this State jurisdiction to grant a warrant based on the requisition, and that the habeas corpus court erred in denying the release of the relator.
It has been held by this court many times that when, in the trial of a habeas corpus case, it appears that the respondent holds the petitioner in custody under an executive warrant based upon an extradition proceeding, and the warrant is regular on its face, it is prima facie sufficient to hold the petitioner. The law presumes that the Governor in issuing his executive warrant has complied with all of the rules of law, and this presumption will continue until the contrary is made to appear. Blackwell v. Jennings, 128 Ga. 264 (2) (57 S. E. 484); Dawson v. Smith, 150 Ga. 350, 351 (2) (103 S. E. 846); Scheinfain v. Aldredge, 191 Ga. 479, 484 (12 S. E. 2d, 868); Rex v. Aldredge, 191 Ga. 638 (13 S. E. 2d, 665); Broyles v. Mount, 197 Ga. 659 (30 S. E. 2d, 48).
While "the evidence offered by the plaintiff in this case can not be held, as a matter of law, to be sufficient to overcome this presumption" ( Broyles v. Mount, supra), the respondent having tendered in evidence, over proper objections of the petitioner, the requisition of the Governor of the State of South Carolina without "a copy of an indictment found or an affidavit made before a magistrate" (18 U. S. C. A., 3182), the respondent in effect contradicted the prima facie showing made by the warrant alone, and thus showed that the petitioner was being illegally restrained, in that the warrant was not based on a valid requisition. The trial court, therefore, erred in remanding the petitioner to the respondent. See, in this connection, Dawson v. Smith, supra; Deering v. Mount, supra; Ellis v. Grimes, 198 Ga. 51 (30 S. E. 2d, 921); Mayfield v. Hornsby, 199 Ga. 70 (33 S. E. 2d, 312); Denny v. Foster, 204 Ga. 872 (52 S. E. 2d, 596).
No ruling is necessary on the evidence introduced by the petitioner, in which he attempted to show the motive of the prosecutor in procuring the extradition warrant, but see Barranger v. Baum, supra; 39 C. J. S. 560, 39 (g).
The constitutional attack attempted to be made by the petitioner was too general and indefinite to raise any question as to the validity of the 1951 act, dealing with the extradition of fugitives. Stegall v. Southwest Georgia Regional Housing Author- ity, 197 Ga. 571 (30 S. E. 2d, 196). Other assignments of error made by the petitioner are without merit.
Judgment reversed. All the Justices concur, except Wyatt and Candler, JJ., who dissent, and Atkinson, P. J. not participating.
Winston Owen, Ollie Mae Stowe and Frank C. Gross, contra.
George L. Goode, for plaintiff in error.
SUBMITTED APRIL 13, 1953 -- DECIDED MAY 14, 1953.
Saturday May 23 04:18 EDT


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