# Ex Parte Innes

> Court of Criminal Appeals of Texas · January 13, 1915 · 77 Tex. Crim. 351

URL: https://www.frixlaw.com/law-library/cases/3960264

## Case

- **Full name:** Ex Parte Ida May Innes.
- **Court:** Court of Criminal Appeals of Texas
- **Decided:** January 13, 1915
- **Citations:** 77 Tex. Crim. 351; 173 S.W. 291; 1915 Tex. Crim. App. LEXIS 79
- **Precedential status:** Published
- **Opinion:** Dissent by Dayidsoh
- **Judges:** Dayidsoh, Harper
- **Cited by:** 7 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/3960264

## Opinion text

DAYIDSOH, Judge
(dissenting).—I have been unable to agree with my brethren in the disposition of this case. They have discussed questions that are not, in my judgment, germane, I shall pass those without discussion
The relator was extradited from the State of Oregon to Texas at- the
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request of the Governor of Texas to answer a charge of murder. She was brought to San Antonio, tried and acquitted of murder. The grand jury also indicted her for conspiracy. Upon acquittal for the homicide, the conspiracy ease was dismissed. She was not, however, granted her freedom, but held' by order of the court to await extradition demands from the State of Georgia. Besort to writ of habeas corpus was had to obtain release. This was refused. This is a sufficient statement of the facts to discuss the questions in hand.
The only contention I purpose to discuss is based upon the fact that relator is not a fugitive from justice in Texas from the State of Georgia, because she was brought from the State of Oregon to Texas under the extradition process, that is, by the strong arm of the law, and her presence in Texas was not of her own volition or voluntary act. The Federal Constitution provides: “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.” This clause of the Constitution not being self-executing, see Hyatt v. Cochran, 188 U. S., 691 , 47 L. Ed., at page 708 ; Kentucky v. Dennison, 24 Howard, 66 , at page 104, 16 L. Ed., 717 -728; Roberts v. Reilly, 116 U. S., 80 . Congress passed the following statute, section 5278: “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 receive the fugitive, and to cause the fugitive to be 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.”
This case, of course, arose under this section of the Acts of Congress. There are many' decisions in the United States, both Federal and State, construing the congressional Act from various standpoints. There are few cases, however, in point on the particular question here raised, and so far as I have been enabled to discover the ease of Suydam v. Sennott, 20 Albany Law Journal, 230, is the main case which holds that relator would be subject to extradition under the facts of this case. Hackney v. Welsh, 107 Ind., 253 , is cited in support of the Suydam case, but in my judgment it does not support it. In the Suydam case, as in this
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case, the parties were by compulsory process brought into the asylum State. The party was not there of his own volition or act. In Hackney v. Welsh, supra, the extradited party or the party sought to be extradited, was in Indiana of his voluntary act, and that is emphasized in the opinion of Judge Elliott. In that case the party came from Michigan to Indiana of his own volition and was there arrested, and was in Indiana at the time of the demand of the Michigan executive for his extradition. After the extradition papers reached Indiana the party escaped from jail and went to Ohio, and was subsequently extradited from Ohio to Indiana. The court held, as he came into Indiana of his voluntary act and had escaped after papers had reached Indiana from Michigan, he was. subject to extradition. So it will be plainly seen that case has but little if any application here. The authorities, generally speaking, are opposed to Suydam case, supra, and hold that the act of the alleged fugitive coming into the asylum State must be voluntary and not by compulsion. This, as I understand, was the holding in the Indiana case, supra. Mr. Spear, in his work on Extradition, pages 558 to 571, reviews the cases then in existence, and criticises sharply the opinion in the Suydam case as being incorrect, and reaches the conclusion that in order to authorize the extradition of the party he must have come into the asylum State of his own volition. In other words, he must
have -fled
into the asylum State. It might be entertaining to follow the reasoning of the decisions and of Mr. Spear, but those who desire to do so can read these authorities. I do not care to write at length in regard to the course of such reasoning. The view expressed and entertained by Mr. Spear is also to be found in Hyatt’s case, supra, in an opinion by Mr. Justice Peckham of the Supreme Court of the United States, who uses this language: “It speaks of a demand by the executive authority of a State for the surrender of a person as a fugitive from justice, by the executive authority of a State
to which such person has fled,
and it provides that a copy of the indictment found, or affidavit made before a magistrate of any State, charging the person demanded with having committed treason, etc., certified as authentic by the Governor or chief magistrate of the State or Territory
from whence the person so charged has fled,
shall be produced, and it makes it the duty of the executive authority of the State
to which such person has fled
to cause him to be arrested and secured. Thus the person who is sought must be one who has fled from the demanding State, and he must have fled (not necessarily directly) to the State where he is found. It is difficult to see how a person can be said to have fled from the State in which he is charged to have committed some act amounting to a crime against that State, when in fact he was not within the State at the time the act is said to have been committed. How can a person flee from a place that he was not in? He could avoid a place that he had not been in; he could omit to go to it; but how can it be said with accuracy that he has fled from a place in which he had not been present ?”
If relator could not have fled from the State of the alleged crime because of his want of presence in that State, how can it be said
that
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he fled into the asylum State when he was carried there hy the
strongr
arm of the law without any volition on his part or against his will?
The Act of Congress proceeds upon the theory that the act of the party in fleeing from the demanding State and fleeing into the asylum State is voluntary. It excludes the idea of compulsion or duress. If flight is a voluntary act, then it could not be imputed to him as a voluntary act that he had been carried'by the overpowering command of official authority into a State as his voluntary act. It occurs to the writer that the conclusion, is irresistible, that Mr. Justice Beckham’s inquiry must be answered to the effect that, before a party is a fugitive in the asylum State, or has fled to the asylum State, that he must himself do* so voluntarily and not be carried by official authority. This is compulsion and in the nature of duress. It robs a party of all volition t in fact, it is not his act. If it requires
flight from the demanding State,
then by the clear reading of the Act of Congress it
requires flight into the asylum State.
The language is the same, is used in the same sense in both instances in the Act of Congress, and to the mind of the writer there seems to be no escape from the conclusion that if it must be the voluntary act of the alleged fugitive in leaving the demanding State, it must also be his voluntary act in being in the asylum State. This is clearly the reasoning in the Indiana case, supra. It is too well understood for discussion, that words and terms are to be taken in their ordinary and accepted sense, understanding and meaning. To avoid this the legislative authority must give the terms and words a different meaning from such common acceptation. This is a statutory rule in Texas, and seems to be the rule everywhere in civilized countries. Congress did not see proper to change the meaning of the words “flight,” “fled,” or “fugitive,” and give those words a different meaning from their ordinary acceptation. The legislative authority may give particular meaning to words, and the courts would usually have no authority to give meaning different from that embodied in the legislative Act. If the Act defines them different from the common acceptation, that definition .will be accepted by the courts, otherwise we go to the ordinary meaning of the words, terms or language. The clause of the Federal Constitution quoted is not self-executing, therefore it took the Act of Congress to put it into operation. That body was clothed with supreme authority in the matter, and in its wisdom saw proper to enact the statute quoted and prescribe the conditions upon which the extradition may occur between the States. The courts, both State and Federal, are bound by the Act of Congress, and should follow the intent with which it was enacted. The statute is of such character as requires it to be strictly construed. Ex parte Morgan, 20 Fed. Rep., 298; Roberts v. Reilly, 116 U. S., 80 . This Act of Congress does not militate against the sovereignty of the States, and could not be held to do so. The comity between States is to be found in the Federal Constitution, and properly enacted legislation under such delegated authority. The States of the Federal Union are sovereign, and as an act of sovereignty .created the Federal Constitution and delegated the authority therein
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specified. This does not change or alter the sovereignty but emphasizes it in the State. The States clothed the Federal government with authority to do this particular thing, as well as many other things. This was a solemn compact entered into by the States of the Federal Union for the ulterior purpose of carrying out the will of the high contracting parties. It was intended to bring about harmonious rule of action, and Congress, enacting this legislation, did so under the authority of the States of the Federal Union. To that extent we may say that Congress is the supreme authority, and in the sense indicated this can be said to be true, and every State in the Union stands pledged to abide the solemn compact in good faith. These provisions of the Constitution not being self-executing, it devolved upon Congress to put that clause into operation and effect, and the methods and plans devised by such legislation is and ought to be binding until Congress sees proper to change it or otherwise provide. It has said, first, that a party to become a fugitive
must have fled from the demanding State;
second, to justify the authority of the demanding State to extradite, the alleged fugitive
must have fled into the asylum State.
The facts in this case exclude flight into Texas by relator, and proves beyond question that she was brought here under extradition demand. Having been freed from the accusation against her in Texas, she did not, therefore, become a fugitive from justice in Texas from the State of Oregon, or from the State of Georgia. Her presence in Texap was not voluntary, but compulsory. I do not care to discuss a state of case which would have arisen had she been discharged from custody and chosen to remain in Texas as her asylum or home. This she did not and was denied the privilege or right so to do. She was under arrest and compulsion from the time she was taken in custody in Oregon on extradition demand from Texas until her arrest on the demand of Georgia, and that custody is still existent. My brethren have injected into this case a discussion, to some extent, of the right of Texas to exercise authority over the relator for offenses for which she was not extradited. That question is not in this case. Nothing of the sort was raised nor is it here raised. Texas had disposed of the relator as to all demands either by an acquittal of murder or dismissal of the case of conspiracy, therefore there was nothing remaining in Texas to which she might be subject to prosecution. The only question here presented and discussed is, whether she had fled into Texas as an asylum after having fled from the State of Georgia. It might be entertaining to review the cases and discuss the matter more at length, but I do not deem it worth while. The language of the Act of Congress is plain, and, as I understand it, needs but little comment. She was in Oregon. This language would seem all sufficiently plain and ought to control. There are authorities which might be cited, but the reasoning of Mr. Spear has not been answered, and, in my judgment, will not be correctly answered; and until the Supreme Court of the United States has authoritatively held the other way, I shall believe the Act of Congress means, when it speaks of fleeing from the demanding State and
fleeing into
the asylum State, the voluntary act of the
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alleged fugitive, and it does not mean that by being
compelled
by force of authority to come into the State would constitute
-fleeing
into the State. Whether this Act of Congress should be the proper rule of not I am not concerned. As Congress has acted, such act is binding. So believing I can not agree with my brethren and, therefore, most respectfully enter my dissent, believing that the relator ought to be discharged from custody.
[This case did not reach the hands of the Reporter until July, 1915.—Reporter.]

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/3960264. Public record. Not legal advice.