Petition for Writ of Certiorari — Moulthrope v. Matus

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IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1952

WATSON MOULTHROPE,

Petitioner

vs.

EDWARD MATUS,

Respondent

PETITION FOR WRIT OF CERTIORARI TO THE SUPREME

COURT OF ERRORS OF THE STATE OF CONNECTICUT

GEORGE MUIR

MARY C. FITZGERALD

STEPHEN M. RILEY

Of Counsel

WILLIAM S. GORDON, JR.

Counsel for Petitioner

rte et oon) eee

aaa Stark ne a ML RIGA MOORES Sti Me RES CR Me 4

INDEX

Page af

Opinions below 1

Jurisdiction 1

Questions presented 3

Constitutional provision and statute involved 3

Statement 4

Specifications of errors 6

Reasons for granting the writ 6

Conclusion 14

Appendix A. Pertinent section of federal Extradition Act,

18 U.S.C. 3182 15

Appendix B. Cases supporting extradition where departure

from demanding State was involuntary but

compulsion was of an authority other than that

of demanding State 15

Appendix C. Cases asserting that where person is expelled

from demanding State by its compulsory pro-

cess, he is not a fugitive from justice .................. 17

Appendix D. Cases following principle that by expelling a

person a State waives its right to his later

extradition 17

Appendix E. Cases holding extradiiuon of prisoner to be

pardon or commutation of sentence 0000.00.00... 18

Appendix F. Cases ruling that ouster of prisoner constitutes

only temporary waiver by ousting State or no

waiver 19

Appendix G. Opinion, In re Whittington, 34 Cal. App. 344,

167 Pac. 404 20

Appendix H. Cases disapproving In re Whittington, 34 Cal.

App. 344; factual differemces 00.00.0000... occ

CITATIONS

Cases:

Adams v. Waters, __ Ok]. Cr.__, 237 P. 2d 914 ooo... 11,18

Appleyard v. Massachusetts, 203 U.S. 222 ooo.ooooooocccccccccccsssssnee 7,12

Bassing v. Cady, 208 U.S. 386 7,13

Church v. Hackenberg, Ct. of Common Pleas, Union Co.,

Pa., No. 100, Jan. Term, 1937 10, 17

Com. of Pa. ex rel. Kamons v. Ashe, 114 Pa. Superior Ct.

119, 173 Atl. 715 ............

Drew v. Thaw, 235 U.S. 432. 7

Ex parte Amundson, 74 N.D. 134, 20 NW. 2d 340 ow. 10

Ex parte Drake, 233 P. 2d 931 ............ 4 9

Ex parte Drake, 38 Cal. 2d 195, 238 P. 2d 566 ou. 9

Ex parte Guy, 41 Okl. Cr. 1, 269 Pac. 782 ........ Brg 11,18

Ex parte Hart, __Okl. Cr.__, 244 P. 2d 859 .. . 33;38 16

Ex parte Nabors, 33 N.M. 324, 267 Pac. 58 occ 25

Ex parte Reggel, 114 U.S. 642 13

Ex parte Youstler, 40 Okl. Cr. 273, 268 Pac. 323

10, 11, 17,18

(1)

ba

Page

Hart v. Mangum, 146 Ga. 497, 91 S.E. 543 oe... 16

Hyatt v. Corkran, 188 U.S. G91 on ccccccccccsscsnnee ee |

In re Anthony, 198 Wash. 106, 87 P. 2d 302 .......................... 16, 24

In re Cohen, 104 N.J. Eq. 560, 146 Atl. 423 0000... 16, 24

In re Hess, 5 Kan. App. 763, 48 Pac. 596 0, 18

In re Jones, 154 Kan. 589, 12) P. 2d 219 oo 17,19

In re Martin, 142 Kan. 907, 52 P. 2d 1196 oo. 24

In re Marzec, 25 Cal. 2d, 794, 154 P. 2d 873 .....W.............. 9

In re Whittington, 34 Cal. App. 344, 167 Pac. 404

9, 10, 17, 20, 24

a i ia ashi aceseetestinereerteossees 12

Johnson v. Lowry, 183 Ga. 207, 188 S.E. 23 .............................. 19

People ex rel. Barrett v. Bartley, 383 Ill. 437, 50 N.E.

2d 517 9,10,11,17

People ex rel. Gallagher v. Hagan, 69 N.Y.S. 475, 34

Misc. 85

People ex rel. Hutchings v. Mallon, 218 N.Y.S. 432, 218

App. Div. 461

People ex rel. McFadden v. Meyering, 358 Ill. 442, 193

N.E. 475

Roberts v. Reilly, 116 U.S. 80 7, 8, 13,14

Spencer v. Hamilton, 12 F. 2d 976 (CA. B) oocccccoocceeccececsesessnee 15

State ex rel. Falconer v. Eberstein, 105 Neb. 833, 182

N.W. 500

State ex rel Shapiro v. Wall, 187 Minn. 246, 244 N.W.

24

State v. Saunders, 288 Mo. 640, 232 S.W. 973 on. 18

State v. Swain, 147 Or. 207, Si PP. Sch FOS uunccccccccccicccccccccccsseescsees 19

Taylor v. Taintor, 36 Conn. 242 13

Taylor v. Taintor, 16 Wall. 366 7, 8,13

United States ex rel. Hunke v. Ragen, 158 F. 2d 644

(C.A. 7)

Constitutions and Statutes:

Constitution of the United States, Article IV, ames : —"

Federal Extradition Act, 62 Stat. 822, 18 U.S.C. 3182

2, 4,12, 15

28 U.S.C. 1257 (3) 1

Miscellaneous:

“Interstate Rendition as Applied to a Person Brought In-

voluntarily into the Surrendering State,” 29 Journ.

Crim. Law and Criminology 309 10

Note, 18 Columbia L.R. 70 9

* Note, 31 Harv. Law L.R. 493 9

Note, 16 Mich. L.R. 198 9

Note, 2 Minn. L.R. 303 9

Note, 81 U.Pa. L.R. 772 9

Note, 33 U.Pa. L.R. 798 9

Note, 5 Va. L.R. 287 9

Oe ra atc cers : '

3 REORDER NA SAIN

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IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1952

Case No.

Watson Mou.truropE, Petitioner

vs.

Epwarp Matus, Respondent

PETITION FOR WRIT OF CERTIORARI TO THE SUPREME

COURT OF ERRORS OF THE STATE OF CONNECTICUT

To the Honorable the Justices of the Supreme Court of the

United States:

Petitioner, Watson Moulthrope, prays that a Writ of

Certiorari issue to review the judgment of the Supreme Court

of Errors of the State of Connecticut, entered in the above

case on November 25, 1952.

: OPINIONS BELOW

The opinion of the Superior Court of the State of Con-

necticut (R. 9-10) was by memorandum of decision and is

not reported. The opinion of the Supreme Court of Errors of

the State of Connecticut (R. 42-46) is reported at 139 Conn.

272, 93 A. 2d 149.

JURISDICTION

The judgment of the Supreme Court of Errors of the

State of Connecticut was entered on November 25, 1952

(R. 46-47). The jurisdiction of this Court is invoked under

28 U.S.C. 1257(3).

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The Courts below were called upon to decide whether

petitioner is a fugitive from justice within the meaning of the

Constitution of the United States (Art. IV, Sec. 2) and the

federal Extradition Act (18 U.S.C. 3182). The federal ques-

tions were first raised by petitioner in his reply to respondent’s

return to the writ of habeas corpus (R. 7-9), in which he

claimed that he was not a fugitive from justice, that he was

in Connecticut as a result of the forcible action of Florida,

and that Florida had waived and lost its jurisdiction over his

person. The Superior Court of Connecticut determined these

matters adversely to petitioner (R. 9-10). The questions were

stated and overruled by the Superior Court in its finding

(R. 15-16), and were raised by petitioner on appeal to the

Connecticut Supreme Court of Errors in his assignment of

errors (R. 16-17).

The Supreme Court of Errors, in ruling adversely to

petitioner (R. 42-46), passed directly upon the questions

raised, stating:

The decisive question presented by the plaintiff in

his appeal is whether he is a fugitive from justice within

the meaning of the federal constitution and the statutes

permitting the extradition from one state to another of a

person charged with crime. U.S. Const. Art. IV, § 2; 62

Stat. 822, 18 U.S.C. § 3182 (Sup. 5, 1952). He claims that

he is not a fugitive from justice because he was taken from

Florida forcibly and against his will by compulsory legal

process (R. 43).

The Court stated further:

He claims, therefore, that he is not now a fugitive

from Florida justice because her authorities turned him

over to the Connecticut authorities without his consent

and thus voluntarily released him. ... Even though the

plaintiff was removed from Florida by legal process and

against his will, he is none the less a fugitive from justice

in the sense required by a reasonable and salutary con-

struction of the constitution and the statutes (R. 45).

QUESTIONS PRESENTED

After conviction in Florida of murder, petitioner, while

in custody of the Florida authorities under a mittimus to carry

a life sentence into effect, was forcibly and against his will

delivered to representatives of Connecticut pursuant to an

extradition warrant of the Governor of Florida and, with the

permission and assistance of the State of Florida, was removed

from Florida and taken to Connecticut. Florida now seeks to

have petitioner returned from Connecticut as a fugitive from

justice. The questions presented are:

(1) Whether, under such circumstances, petitioner is a

fugitive from the justice of Florida within the meaning of the

Constitution of the United States and the federal Extradition

Act.

(2) Whether, under such circumstances, Florida relin-

quished jurisdiction over petitioner’s person and waived its

right to have him returned by extradition.

(3) Whether a State may compel by extradition the

return of a person who, while he was in such State’s custody

upon conviction of a crime there‘n, left such State not only

other than voluntarily but by such State’s compulsory process.

CONSTITUTIONAL PROVISION AND STATUTE INVOLVED

The constitutional provision involved is the second clause

of Article IV, Section 2, of the United States Constitution,

which reads as follows:

A Person charged in any State with Treason, Felony,

or other Crime, who shall flee from J ustice, and be found

— % AAI ete 25

SPOOR ELLE IE ROLES IE 1

— —— meinen.”

4

in another State, shall on Demand of the executive

Authority of the State from which he fled, be deJivered

up, to be removed to the State having Jurisdiction of the

Crime.

Also involved is the federal Extradition Act, as amended (62

Stat. 822, 18 U.S.C. 3182), the pertinent section of which is

set forth in Appendix A.

STATEMENT

The primary facts are not in dispute. They are stated in

the finding of the Connecticut Superior Court (R. 13-15) and

are summarized in the opinion of the Connecticut Supreme

Court of Errors (R. 42-43).

In 1925, petitioner was convicted of the crime of robbery

by a Florida court and was sentenced to serve five years in

prison. After he had served approximately two years, the

Florida Board of Pardons granted him a conditional pardon,

“upon the express understanding and condition that he lead

a sober, peaceable and law-abiding life.” Petitioner then went

to Connecticut, where, in 1929, he was convicted of another

crime and sentenced to state prison. While serving this

sentence, he escaped and returned to Florida. On March 19,

1930, he was convicted of the crime of murder in a Florida

criminal court.

On March 27, 1930, after conviction but before sentencing,

the Governor of Florida honored a requisition of the Governor

of Connecticut and issued a warrant of extradition. Thereafter

on the same day, petitioner was sentenced by the Florida

court to imprisonment for life, and the court issued a mittimus

commanding his delivery to the Florida state prison. The

mittimus was given to a Florida deputy sheriff. who took

custody of petitioner; but instead of delivering him to the

state prison, the deputy sheriff took petitioner out the back

door of the courthouse, drove him around Jacksonville for

7

4

—

5

about two hours, while his attorney was seeking a writ of

habeas corpus in another court, and then drove him to the ;

Florida-Georgia state line, where he formally turned him over

to the representatives of the State of Connecticut (R. 22-25).

Petitioner had made a statement in open court and to the

Florida authorities that he was fighting extradition to Con-

necticut until he had served his Florida sentence (R. 23, 25-26).

Petitioner was removed from Florida and taken to Connecticut

“with the permission and assistance of the State of Florida

and its duly authorized officers and agents” (Finding, par. 9,

R. 14), and was removed from Florida “under compulsory

process at a time when the State of Florida had him in its

custody” (Finding, par. 11, R. 15).

In Connecticut, petitioner was tried and convicted of the

crimes of escape and theft of motor vehicle and sentenced to a

long term in state prison, where he has since remained.

In 1948, the Florida Board of Pardons withdrew the con-

ditional pardon granted petitioner in 1928 and ordered his

return to custody to serve the unexpired portion of his original

robbery sentence and to serve the sentence of life imprison-

ment for murder. On October 8, 1949, the Governor of Florida

made requisition on the Governor of Connecticut for the re-

turn of petitioner as a fugitive from justice. Thereupon the

Connecticut Governor issued a warrant to respondent, a Con-

necticut state policeman, requiring his delivery to the Florida

authorities.

The present proceedings were brought to prevent the ex-

tradition from Connecticut to Florida. On February 27, 1951,

the Connecticut Superior Court issued judgment dismissing

the writ of habeas corpus (R. 10-11). On November 25, 1952,

the Connecticut Supreme Court of Errors issued judgment,

finding no error and affirming the judgment of the Superior

Court (R. 46-47).

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The Supreme Court of Errors held that even though the

plaintiff was removed from Florida by legal process and

against his will, he is none the less a fugitive from justice;

and that although Florida’s authorities turned him over to

Connecticut under compulsory process and without his con-

sent, Florida lost no control over him and is entitled to his

return (R. 45).

SPECIFICATION OF ERRORS

The Court below erred:

(1) In holding that petitioner, although forcibly re-

moved from Florida against his will by compulsory legal

process, with the permission and assistance of Florida officers,

while he was in their custody, is none the less a fugitive from

Florida justice.

(2) In refusing to hold that Florida, by forcibly remov-

ing petitioner against his will from the State of Florida when

petitioner was in its custody, relinquished its jurisdiction over

his person and waived its right to have him returned by

extradition.

(3) In finding no error in the judgment of the Superior

Court and in affirming said judgment.

REASONS FOR GRANTING THE WRIT

1. This matter presents questions of large importance

concerning interstate rendition which have not been, but

should be, settled by this Honorable Court. A determination

of the issues here will quiet the wide confusion now existing

as to the right of States to demand the return as fugitives of

persons who departed from their borders other than volun-

tarily or whom such States ousted against their will; the

obligation or authority of States to render on requisition per-

codes manerienndescassoemrpence Pat Ne Niet eA ia Micrel MATT Oy! been 6

sons who departed from the requisitioning States through the

compulsory process of the requisitioning States; and the rights

of persons to be free of restraint under the authority of the

constitutional and statutory provisions concerning extradition

when they have not in fact fled from the justice of the demand-

ing States but have been forcibly expelied therefrom.

mere tca it wy Agel Co ENTS AP

Pk AIRES

While this Court has held that the motive with which a

person leaves a State is unimportant in the determination of E

whether such person is a fugitive from justice,' in each case in

which the matter has been considered, the person left the

State voluntarily. In no case which we have been able to find

has this Court been called upon to determine directly whether

a person is a fugitive from the justice of a State when he

leaves such State by compulsion, whether the compulsion is

of the State whence he departed or of some other authority.

Similarly this Court has not been called upon to determine

directly the effect on a State’s right to have a person returned

by extradition of its actions in forcibly ousting such person

at a time when he was in its custody. But this Court has an-

nounced that upon such compulsory ouster, “the State whence

he is removed can no longer require his appearance before

her triounals.” Taylor v. Taintor, 16 Wall. 366, 370 (1872).

And this Court has held that where a person is charged with

crimes in two States, the State which has him in custody “may

choose to waive the exercise of its jurisdiction by surrender-

ing the fugitive to answer to the laws” of the other State.

Roberts v. Reilly, 116 U. S. 80, 96-97 (1885). The Connecticut

Supreme Court of Errors in the present case refused to hold

that Florida, by extraditing petitioner while in its custody

' Roberts v. Reilly, 116 U. S. 80, 97 (1885); Appleyard v. Massachu-

setts, 203 U. S. 222, 226-27 (1906); Bassing v. Cady, 208 U. S. 386,

392 (1907); Drew v. Thaw, 235 U. S. 432, 439 (1914).

_

waived its right to have petitioner returned by extradition

thereafter and is thus in conflict with the principles enunciated

by this Court in Taylor v. Taintor, supra, and Roberts v. Reilly,

supra.

8

The absence of a determination by this Court of the ques-

tions raised by this case has resulted in widely different inter-

pretations by the courts, state and federal, of the constitutional

and statutory provisions involved. Some jurisdictions hold

that even where the leaving is involuntary, the State whence

the person departed may cause his return by extradition; but

in the preponderance of such cases, the compulsion causing the

actual departure was that of some other authority than the

demanding State. These cases are collected in Appendix B.

Where the compulsion was that of the demanding State itself,

the courts are in conflict. Some refuse extradition on the

ground that the ousted person is not a fugitive from justice

(see Appendix C). Some follow the principle that there is an

outright and permanent waiver by the demanding State (see

Appendix D). Others hold the action of the chief executive

of the demanding State ousting the person by extradition to

be tantamount to a pardon or commutation of sentence (see

Appendix E). Still others, while supporting the principle of

waiver, hold that the waiver is temporary only and does not

preclude the return of the ousted person by extradition (see

Appendix F).

In light of these differences in the construction of an

important constitutional provision affecting substantial rights

of States and individuals, and the frequency with which the

questions presented by this case arise, it is essential that this

Court, in the interests of uniformity in the administration of

justice, define the meaning and scope, under the facts of this

case, of the constitutional and statutory provisions relating

to extradition.

ae

9

2. The decision of the Connecticut Supreme Court of

Errors in the present case is in direct conflict with In re

Whittington, 34 Cal. App. 344, 167 Pac. 404 (1917), both on

the proposition that a person involuntarily ousted by the de-

manding State is not a fugitive from such State, and also on

the proposition that the ouster of the demanding State effects

a waiver of that State’s right to have the ousted person re-

turned. The decision of the California District Court of Appeal

is set forth in Appendix G. Further, on the question of waiver,

the decision in the instant case is in direct conflict with the

decision of the Supreme Court of Illinois in People ex rel.

Barrett v. Bartley, 383 Ill. 437, 50 N.E. 2d 517 (1943).

The Whittington case, although not decided by the highest

court of California,? is probably the most widely cited case

on the subject of interstate rendition, where the departure

from the demanding State was involuntary. It was specifically

disapproved by the Connecticut Supreme Court of Errors in

the present case (R. 45). Its principles have been followed in

varying degrees or disapproved in many other jurisdictions

and have been discussed, favorably and adversely, in the law

reviews.?

The facts in the Whittington case parallel almost exactly

those of the case at bar. Whittington, while in the custody of

2 The Whittington case was distinguished by the California Supreme

Court, without disapproval of its principles, in Zn re Marzec, 25 Cal.

2d 794, 154 P. 2d 873 (1945), in which Marzec voluntarily left

California on a condition expressed in a parole agreement he made

with California that he return when released by New Mexico, to

whose authorities ne was given with his consent. The Whittington

case was followed by the District Court of Appeal, Third District,

in Ex Parte Drake, 233 P. 2d 931 (1951), affirmed on another ground

by the California Supreme Court, 38 Cal. 2d 195, 238 P. 2d 566

(1951).

3 Approving principles of the Whittington case: 31 Harv. L.R. 493

(1918), 16 Mich. L.R. 198 (1918), 5 Va. L.R. 287 (1918). Contra:

18 Columbia L.R. 70 (1918), 2 Minn. L.R. 303 (1918), 81 U. Pa. L.R.

772 (1933), 83 U. Pa. L.R. 798 (1935).

s

terete er aseteensernetascien

10

Texas for a crime committed there, was extradited from Texas

to California to answer for another crime. Upon the disposi-

tion of the California case, Texas sought to have him re-

turned. The Court held (134 Cal. App., at p. 347) that:

. . . the prisoner did not leave the state of Texas by

any voluntary act of his own. He was taken out of the

state against his will and under compulsory process, at a

time when the state of Texas had him in custody with

full right and power to prosecute him for the offense for

which it now seeks to have him returned. Not only may it

be said that he is not a fugitive because he did not volun-

tarily leave that state, but because also the state of Texas

voluntarily relinquished the jurisdiction of its courts over

his person and waived its right to thereafter have him

brought back from the California jurisdiction to answer

for the same offense.

The Whittington case was approved in People ex rel.

Barrett v. Bartley, 383 Ill. 437, 50 N.E. 2d 517 (1943); Ex

parte Youstler, 40 Okl. Cr. 273, 268 Pac. 323 (1928); Church v.

Hackenberg, Ct. of Common Pleas for Union Co., Pa., No. 100,

Jan. Term, 1937.4 It was disapproved in a number of cases,

many of which however present different factual situations;

these cases are gathered in Appendix H. The impact of the

Whittington case on the unsettled status of the law on inter-

state rendition of persons who left the demanding State in-

voluntarily is summarized by the Supreme Court of North

Dakota in Ex parte Amundson, 74 N.D. 134, 20 N.W. 2d 340

(1945), in which many of the cases referring to it favorably

and adversely are listed.

4This case is discussed by Forrest Revere Black in his article,

“Interstate Rendition as Applied to a Person Brought Involuntarily

into the Surrendering State,” 29 Journ. Crim. Law and Criminology

309 (1938).

POEL ESE REE RLF aE OTE CE RE RR hea 8 st . mereunne : : . Mere

11

The case of Barrett v. Bartley, supra, is the leading case

on the proposition that when a State has a person in custody

and surrenders him by extradition, the surrender operates as

a waiver of its jurisdiction. One McLaughlin, while serving a

sentence in an Illinois prison, was paroled; but before the

effective date of the parole, he was extradited to Wisconsin.

Later, after serving prison sentences in Wisconsin and Ohio,

he was extradited from Ohio back to Illinois, where he sought

his release on habeas corpus on the ground that Illinois had

waived its jurisdiction when it extradited him to Wisconsin.

The Supreme Court of Illinois held that the writ of habeas

corpus was correctly granted, stating that the Illinois juris-

diction had been forever waived. The Court said (383 Il., at

p. 446) that it was convinced:

... that the waiver of jurisdiction of a State over a

fugitive is a prerogative of the Governor, and that his

extradition warrant takes priority over all State process

by which the fugitive is held; that a prisoner cannot be

handed from one jurisdiction to another for the purpose

of trial, conviction and service of a new sentence, before

being returned to the asylum State for service of the un-

expired sentence, without violating his constitutional

rights.

The case at bar is also in conflict with the reasoning of

the Oklahoma Criminal Court of Appeals in Ex parte Hart,

—Okl. Cr._, 244 P. 2d 859 (1952), Adams v. Waters, __Okl.

Cr._, 237 P. 2d 914 (1951), and Ex parte Youstler, 40 Okl.

Cr. 273, 274-75, 268 Pac. 323, 324 (1928); cf. Ex parte Guy,

41 Okl. Cr. 1, 269 Pac. 782 (1928). JM She Hart, Adams,

and Youstler cases, while holding that once a person was back

in the State from which he had been extradited he could be

subjected to the service of the unexpired portion of his

sentence, approved the doctrine of the Barrett case that the

LP

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SERS a OR Pe Od aes oe

12

extradition of a person by a State caused a waiver of that

State’s right to have him returned by extradition.> See Appen-

dices D, E and F for other cases on the effect of the extradition

of a person by a State on such State’s right to require his

return.

3. It is submitted that under the circumstances of this

case, the rendition of petitioner by Connecticut to Florida is

repugnant to Article IV, Section 2, of the Constitution and to

the federal Extradition Act. While it is true that the constitu-

tional provision should not be so narrowly interpreted as to

enable offenders against the laws of a State to find permanent

asylum in the territory of another State (Appleyard v. Massa-

chusetts, 203 U. S. 222, 228), still there is a point beyond which

the meaning of the words used may not be enlarged by inter-

pretation without destroying their function in the clause. The

words “fled from justice” imply a volitive act by the person

leaving the State. One can not be said to “flee” the justice of

a State when he uses every means at his disposal to remain in

the State and satisfy that justice; when he is continuously in

custody, both before and after his departure; and when the

State which now demands him back was the very instrumen-

tality of his involuntary expulsion.

Unless it clearly appears that the person to be rendered

is a fugitive from justice, it is violative of his rights under

Article IV, Section 2, of the Constitution to restrain him for

the purpose of extradition. As stated by this Court in Innes v.

Tobin, 240 U. S. 127, 131:

... it is not open to question that its provisions [federal

Extradition Act] expressly or by necessary implication

5 In the syllabus by the court in Ex Parte Hart, supra, it was stated:

“. .. such delivery [to a sister State by extradition] is a waiver of

the jurisdiction of this State over the person and a waiver of the right

of the State to demand the return of such person thereafter as a

fugitive from justice.”

13

prohibited the surrender of a person in one State for

removal as a fugitive to another where it clearly appears

that the person was nvt and could not have been a fugitive

from the justice of the demanding State. [Citing Ex parte

Reggel, 114 U. S. 642; Roberts v. Reilly, 116 U. S. 80;

Hyatt v. Corkran, 188 U. S. 691; Bassing v. Cady, 208

U. S. 386, 392.]

Before a Governor can lawfully comply with the demand for

extradition, it must appear that the person demanded is a

fugitive from the justice of the State making the demand.

Roberts v. Reilly, 116 U. S. 80, 95; Hyatt v. Corkran, 188 U. S.

691, 709.

When in 1930 the Governor of Connecticut made requisi-

tion on the Governor of Florida for petitioner, the Florida

Governor was under no compulsion to honor it. Florida, hav-

ing petitioner in its custody, had exclusive jurisdiction over

him until its demands, in connection with both his conviction

for murder and his violation of parole, were met. As stated

by this Court in Taylor v. Taintor, 16 Wall. 366, 371 (1872):

If the laws of the latter State [State of asylum] have been

put in force against the fugitive, and he is imprisoned

there, the demands of those laws may first be satisfied.

The duty of obedience then arises, and not before.

See also Taylor v. Taintor, 36 Conn. 242, 254 (1869). Thus the

Governor of Florida was required to choose whether to allow

Florida justice to take its course, or whether to waive juris-

diction over petitioner in favor of Connecticut’s demand. If

he had chosen the former and petitioner had later been re-

leased, there could be no doubt that compliance with the

Connecticut requisition would then be imperative. But he

chose the latter course, and petitioner, over his protest and

while his attorney was seeking to prevent the extradition by

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14

habeas corpus, was forcibly expelled by the authorities of the

State of Florida. Surely that action constituted the waiver

referred to in Roberts v. Reilly, 116 U. S. 80, 96-97 (1885).

See also Appendices D and E.

Since petitioner is not a fugitive from Florida justice, and

since Florida has waived its right to have petitioner returned

by extradition, the judgment of the Connecticut Supreme

Court of Errors in affirming the dismissal of petitioner’s writ

of habeas corpus was erroneous.

CONCLUSION

For the foregoing reasons the petition for a writ of

certiorari should be granted.

Respectfully submitted,

WILLIAM. S. GORDON, JR.

Counsel for Petitioner

GEORGE MUIR

MARY C. FITZGERALD

STEPHEN M. RILEY

Of Counsel

Fesruary 1953.

15

em

APPENDIX A

The pertinent section of the federal Extradition Act (62 5

Stat. 822, 18 U.S.C. 3182) is as follows: ‘

§ 3182. Fugitives from State or Territory to State,

District or Territory.

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 Terri-

tory to which such person has fled, and produces a copy of

an indictment found or an affidavit made before a magi-

Strate 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, and

notify the executive authority making such demand, or

the agent of such authority appointed to receive the

fugitive, and shall cause the fugitive to be delivered to

such agent when he shall appear. If no such agent appears

within thirty days from the time of the arrest, the prisoner

may be discharged.

APPENDIX B

Cases supporting extradition where departure from demand-

ing State was involuntary but compulsion was of an authority

other than that of demanding State.

Spencer v. Hamilton, 12 F. 2d 976 (C.A. 8, 1926). Federal

authorities brought Spencer, Leavenworth inmate, to Texas

for trial in State court and then returned him to Kansas. In

upholding extradition from Kansas to Texas, court took pains

to point out (p. 977) that while in Texas Spencer remained

in custody of Federal authorities and that “the state of Texas

16

did not voluntarily relinquish over his person a control and

custody which it never acquired.”

State ex rel. Shapiro v. Wall, 187 Minn. 246, 244 N.W. 811

(1932). Federal authorities removed relator from Illinois to

Kansas federal prison. Relator subsequently went to Minne-

sota, which honored Illinois’ requisition. Case emphasizes

conflict between jurisdictions by noting that Illinois had pre-

viously sought relator’s extradition from Kansas, but Kansas

courts discharged him on the theory that he was not a fugitive

from justice. ;

In re Cohen, 104 N.J. Eq. 560, 146 Atl. 423 (1929).

Cohen, paroled by New York, committed federal crime in New

York and on sentence was brought by federal officers to New

Jersey penitentiary. Extradition back to New York upheld.

In re Anthony, 198 Wash. 106, 87 P. 2d 302 (1939).

After conviction of federal crime in California, federal officers

brought Anthony to penitentiary in Washington. Extradition

to California upheld.

People ex rel. McFadden v. Meyering, 358 Ill. 442, 193

N.E. 475 (1934). Federal agents and Chicago police brought

McFadden from Wisconsin to Illinois. In extraditing him back

to Wisconsin, the Illinois court pointed out (p. 445) that

“Wisconsin did not voluntarily surrender him to the authori-

ties of this State,” and that ihe facts of this case did not

present the question of waiver of the right of extradition by

Wisconsin arising out of “the forcible expulsion of the relator

from, and by the act of, that State.”

Hart v. Mangum, 146 Ga. 497, 91 S.E. 543 (1917). Ten-

nessee authorities turned Hart over to federal officers; federal

court ir, Tennessee sentenced him to Georgia penitentiary.

Georgia court upheld extradition to Tennessee.

so iat eR ae Fn cl we nL ae ere

17

APPENDIX C

Cases asserting that where Person is expelled from demand-

ing State by its compulsory Process, he is not a fugitive

from justice.

In re Whittington, 34 Cal. App. 344, 167 Pac. 404 (1917).

Discussed at pp. 10-11, supra; opinion set forth in Ap-

pendix G.

Ex parte Youstler, 40 Okl. Cr. 273, 268 Pac. 323 (1928). Dis-

cussed at pp. 11-12, supra.

In re Jones, 154 Kan. 589, 121 P. 2d 219 (1942). Jones

released from Louisiana state prison to federal authorities on

order of Governor of Louisiana conditioned upon his being

returned to Louisiana after completion of federal sentence.

Jones did not participate in order of release (p. 595), which

was “made entirely without regard” to his wishes (p. 596).

Federal authorities brought him to Kansas prison. Louisiana

governor’s order held to be commutation of sentence and

“manifestly,” Jones “could not be a fugitive from justice of

the demanding state of Louisiana” (p. 596).

Churck v. Hackenberg, Ct. of Common Pleas, Union Co.,

Pa., No. 100, Jan. Term, 1937 (see footnote 4, supra).

APPENDIX D

Cases following principle that by expelling a person a State

waives its right to his later extradition.

People ex rel. Barrett v. Bartley, 383 Ill. 437, 50 N.E. 2d 517

(1943). Discussed at p. 11, supra.

In re Whittington, 34 Cal. App. 344, 167 Pac. 404 (1917 ).

Discussed at pp. 10-11, supra; opinion set forth in Ap-

pendix G.

18

Ex parte Hart, __Okl. Cr.__, 244 P. 2d 859 (1952); Adams v.

Waters, __Okl. Cr.__, 237 P. 2d 914 (1951); Ex parte Youstler,

40 Okl. Cr. 273, 268 Pac. 323 (1928). Oklahoma cases dis-

cussed at pp. 11-12, supra.

State ex rel. Falconer v. Eberstein, 105 Neb. 833, 836, 182

N.W. 500 (1921). When a person is charged with offenses in

two States and is arrested in one, its governor may extradite

such person “and such surrender of the prisoner will operate

as a waiver of the jurisdiction of the asylum State.”

In re Hess, 5 Kan. App. 763, 768, 48 Pac. 596 (1897). Okla-

homa Territory waived its jurisdiction by delivering Hess to

Kansas and by such delivery can no longer require his appear-

ance before her tribunals.

People ex rel. Gallagher v. Hagan, 69 N.Y.S. 475, 477-78, 34

Misc. 85 (1901). Governor may by extradition waive the en-

forcement of a State’s claims upon a prisoner in favor of the

claims of another State.

APPENDIX E

Cases holding extradition of prisoner to be pardon or com-

mutation of sentence.

’Ex parte Guy, 41 Okl. Cr. 1, 269 Pac. 782 (1928). Delivery

of prisoner to federal authorities, even with condition that

he be returned to State authorities after satisfaction of federal

claim, is in eftect a pardon. Court states (p. 5) that if prisoner

had been sentenced to federal penitentiary outside of Okla-

homa, he could not have been brought back.

State v. Saunders, 288 Mo. 640, 652, 232 S.W. 973 (1921).

Delivery of Iowa prisoner to Missouri authorities on requisi-

tion operated as pardon, despite condition that the prisoner

be returned to Iowa in case Missouri failed to convict.

19

In re Jones, 154 Kan. 589, 121 P. 2d 219 (1942). Order of

Louisiana governor under which prisoner was released, de-

livered to federal authorities and removed to Kansas was

commutation of the State sentence. On requisition of

Louisiana, held Jones was not fugitive from justice.

APPENDIX F

Cases ruling that ouster of prisoner constitutes only tem-

porary waiver by ousting state or no waiver.

Johnson v. Lowry, 183 Ga. 207, 188 S.E. 23 (1936). By turn-

ing parolee over to federal authorities who, after sentence.

conveyed him to Georgia prison, Alabama only temporarily

waived the unserved portion of parolee’s sentence; extradition

to Alabama allowed.

Com. of Pa. ex rel. Kamons v. Ashe, 114 Pa. Superior Ct. 119,

173 Atl. 715 (1934). Kamons, while Pennsylvania prisoner,

extradited to Ohio; Ohio, after acquitting him, returned him

to Pennsylvania. The Court stated (173 Atl. at p. 717): “Un-

doubtedly, the commonwealth of Pennsylvania waived rights

when it surrendered Kamons to the state of Ohio, but the

extent of such waiver was limited by the agreement of the

executives [permitted by Pennsylvania statute] that, if

Kamons was acquitted on the charge of murder, he should be

returned to the state of Pennsylvania.”

State v. Swain, 147 Or. 207, 216, 31 P. 2d 745 (1934). After

an information had been filed against Swain in Oregon, but

before indictment, Oregon extradited him to California. On

his return to Oregon, he claimed that his prior extradition

waived Oregon's rights. Held that since he had not been sub-

jected to jeopardy, prosecution in Oregon was not barred.

Oregon’s right to extradite from California not involved.

EN ie acai escaias ae Cen TS A ete pent eee gant tee ae ea oe eee eee

20

Jurczyszyn v. Michigan Parole Board, 316 Mich. 529, 25 N.W.

2d 609 (1947). Lxtradition of parolee from Michigan to Ohio

did not constitute a permanent waiver of Michigan’s right to

commit him for parole violation. Right of Michigan to have

him returned by extradition not involved. Whittington case

distinguished.

United States ex rel. Hunke v. Ragen, 158 F. 2d 644 (C.A. 7,

1947). Under Illinois law, Illinois did not waive or lose juris-

diction over parolee by extraditing him to Wisconsin and can

imprison him for balance of his sentence. Right of Illinois to

have him returned by extradition not involved.

APPENDIX G

In the Matter of the Application of CALVIN K. WHITTING-

TON for a Writ of Habeas Corpus.

[California District Court of Appeals, 34 Cal. App. 344, 167

Pac. 404 (1917)]

APPLICATION for a Writ of Habeas Corpus originally

made to the District Court of Appeal for the Second Appel-

late District.

The facts are stated in the opinion of the court.

JAMES, J.—Petitioner herein claims to be illegally

restrained of his liberty and prosecutes this writ for the

purpose of securing discharge from custody of the police

authorities of the city of Los Angeles and from the cus-

tody of the sheriff of Tarrant County, state of Texas.

The latter officer claims the right to the custody of the

petitioner under the authority of a warrant of rendition

issued by the Governor of California upon a requisition

made by the Governor of Texas. The facts shown are

these: Petitioner was heretofore arrested in the state of Texas

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21

for a crime alleged to have been there committed, and was

taken into custody by the peace officers at Fort Worth. While

there held in custody a requisition issued by the Governor of

California was honored by the Governor of the state of Texas.

This requisition upon the Governor of Texas was made upon a

showing that petitioner here had theretofore committed the

crime of murder in the state of California. The police authori-

ties at Fort Worth, upon having presented to them the Gov-

ernor’s warrant of that state then in the hands of the agent of

the state of California, relinquished control and custody of

the petitioner and he was immediately taken under the war-

rant mentioned to the state of California to answer to the

charge of murder. The latter charge was not pressed to trial

in California. It was dismissed or otherwise disposed of;

whereupon the Governor of Texas made requisition upon the

Governor of California to have petitioner returned to Texas

to answer to the same offense for the alleged commission of

which he was held under arrest at the time the police authori-

ties of Fort Worth relinquished him into the hends of the state

agent to be returned to California. Petitioner has never been

released from custody since he was first arrested in the state

of Texas for the crirae there alleged to have been committed

by him. It is his contention now that under these facts he

cannot be considered as being a fugitive from justice within

the meaning of that term as it is included in section 2 of article

IV of the Constitution of the United States. That provision

is, in part, 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 execu-

tive authority of the state from which he fled, be delivered up

to be removed to the state having jurisdiction of the crime.”

No serious contention is urged as to the right of the court upon

habeas corpus to go behind the warrant of rendition and in-

quire as to the matter here put in issue. It is the contention,

however, of respondents that whenever, upon examination of

a Se a a as

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Fat

22

the question, it appears that the person sought to be extradited

has committed a crime in a sister state and is found within the

state issuing the warrant of rendition, it must be at once con-

cluded that such person is a fugitive from justice and that the

inquiry there ends. We are cited to People v. Pinkerton, 17

Hun (N. Y.), 199; Roberts v. Reilly, 116 U. S. 80, [29 L. Ed.

544, 6 Sup. Ct. Rep. 291]; Appleyard v. Massachusetts, 203

U. S. 222, 223, [7 Ann. Cas. 1073, 51 L. Ed. 161, 27 Sup. Ct.

Rep. 122]; State v. Richter, 37 Minn. 436, [35 N. W. 9]. These

cases are all harmonious to the point that the question of the

motive or intent of a person who, having committed a crime

in one state, leaves that state and is apprehended in another

jurisdiction, is immaterial, and that it will be presumed that

his leaving the state within which the offense was committed

was with intent to avoid prosecution therefor. Some very

broad language is used in People v. Pinkerton, supra, where

the court says: “The charge that he committed a crime in that

state, coupled with the fact that he is found in this state, is

conclusive upon the question whether he is a fugitive from

justice.” None of these cases present facts which fit those

illustrated by the evidence before us, in that no question was

involved as to the act of the accused in departing from the

state being other than one governed by his own volition and

not under the compulsion of legal process, and therein we

think lies a most important distinction. In this case the peti-

tioner had been taken into custody to answer to the charge

pending in the state of Texas and the authorities there volun-

tarily turned him over to the agent of the state of California,

to be brought here to answer for the offense alleged to have

been committed in California. The California authorities held

him in custody and deciding finally not to prosecute him in

this state, continued to restrain him of his liberty, and de-

livered him into the custody of the agent from the state of

Texas to be taken back there to answer for the crime which

he was not permitted to have trial of when first arrested. This,

a

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23

we think, may not be done. Cases have arisen where a person

having committed a crime in state A, has appeared in state B,

there committed another crime and in turn fled to state C,

from which latter state he has been extradited and returned to

state B. After the authorities of state B no longer desired to

hold the prisoner, state A has sought by requisition to extradite

him, and the accused by habeas corpus has presented the ques-

tion that having been brought forcibly back into state B from

state C, he could not be returned to state A without being

first allowed his liberty. The courts have held in such a case

that the controlling fact against the prisoner was that he left

state A in the first instance through his own volition, and

therefore became a fugitive from justice in whatever state he

might thereafter be apprehended. Some of these cases are

referred to in Hackney v. Welsh, 107 Ind. 253, [57 Am. Rep.

101, 8 N. E. 141]. The court there in remanding the prisoner

lays particular stress upon the fact that the accused was shown

to have voluntarily departed from the state which sought his

extradition. We find no cause to dispute the proposition as

announced in the authorities cited by respondents, that where

a person has committed a crime in one state and is found in

another state, he will be presumed to have fled from the juris-

diction of the first. But in this case the prisoner did not leave

the state of Texas by any voluntary act of his own. He was

taken out of the state against his will and under compulsory

process at a time when the state of Texas had him in custody

with full right and power to prosecute him for the offense for

which it now seeks to have him returned. Not only may it be

said that he is not a fugitive because he did not voluntarily

leave that state, but because also the state of Texas voluntarily

relinquished the jurisdiction of its courts over his person and

waived its right to thereafter have him brought back from the

California jurisdiction to answer for the same offense. In an

argumentative way the case of In re Hess (Hess v. Grimes),

ns

a ae

24

5 Kan. App. 763, [48 Pac. 596], is authority for the conclusion

last announced.

The prayer of the petition is granted and petitioner is

ordered to be discharged from the custody of respondents.

Conrey, P. J., and Works, J., pro tem., concurred.

APPENDIX H

Cases disapproving In re Whittington, 34 Cal. App. 344;

factual differences. -

In re Martin, 142 Kan. 907, 52 P. 2d 1196 (1935). After con-

viction in Texas state court, Martin was tried and convicted

in Texas federal court and taken to Kansas prison. Court

pointed out (p. 910) that there was “material difference” in

the facts of In re Whittington. There was no showing as to the

circumstances under which the United States was permitted

to prosecute; it may have been Martin’s preference (p. 912).

Extradition back to Texas allowed.

State ex rel. Shapiro v. Wall, 187 Minn. 246, 244 N.W. 811

(1932). Removal from demanding State was by compulsion

of federal authorities; no showing that demanding State par-

ticipated in any way.

In re Cohen, 104 N.J. Eq. 560, 146 Atl. 423 (1929). Departure

from demanding State was by compulsion of federal authori-

ties, without the participation of demanding State.

In re Anthony, 198 Wash. 106, 87 P. 2d 302 (1939). While in

custody of California, Anthony asked to confer with a post-

office inspector and confessed complicity in a burglary of a

post-office in California. He was released to the federal

authorities, tried and convicted in a California federal court,

and ther. brought to a Washington federal prison; California

did not participate in his removal from the State.

LA EE APCD PM EL Rm NBN Gg PE an tb DAA LIE PM OL LAL LEAL AR LIAS ATT AAT NB ELDON BEN ONE RS on a

Or) an eee age eel titan eae heim

25

People ex rel, Hutchings v. Mallon, 218 N.Y.S. 432, 218 App.

Div. 461 (1926). Hutchings asked for and accepted California

parole with direction to go to New York. His leaving

California, in spite of the direction, must be considered as

voluntary.

Ex parte Nabors, 33 N.M. 324, 267 Pac. 58 (1928). Nabors was

paroled by California to New Mexico and sought to resist

extradition back to California. The Court questioned whether

his departure from California was “involuntary,” pointing

out that he had made application for parole and had requested

to be allowed to go to New Mexico (pp. 330-31).

[ | Office - Supreme Court, U.S.

ey i eo oe

MAR 25 1953

¢ nA roam. -

VARALD § WILLE. @hark

Case No. 619

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1952

WATSON MOULTHROPE,

Petitioner

vs.

EDWARD MATUS,

Respondent

RESPONDENT’S BRIEF TO PETITION FOR

WRIT OF CERTIORARI

ALBERT S. BILL JOSEPH F. BERRY

DOUGLASS B. WRIGHT Counsel for Respondent

Of Counsel

im INDEX

Page

Correction of Petitioner’s Statement ... ieee 1

Reasons for Refusing the Writ .................. Ei ee Let NON ae |

REE IRE LS ON ALLE NEE EE ME SE Rn oe eel peeat eevee: 4

CITATIONS

Applevard v. Massachusetts, 203 U. S. 222, 227, 27 S. Ct. 122,

SO) ds. Be. B68 ee cansun. SELLY IS CITES CO En Li ER oe a 2

Barrett v. Bigger, 17 F. 2d 669, 670, cert. denied, 274 U. S. 752,

47 S. Ct. 765, 71 L. Ed. 1333 ... ae ; eerae

Ue eg Ie Ws MR Tg TG asecaicesaciscsschacescscespcestcnshsasasopscodscinsratecatsevistnsnecen 0

Broyles v. Mount, 197 Ga. 659, 661, 30 S. E. 2d 48 2 8

Ex parte Cohen, 104 N. J. Eq. 560, 563, 146 A. 423; 29 Col. L.

| ERE ERR ARSURSR TS ies sO 2 cece Ure 10 coe et toa RS ee eee NU 2

In re Whittington, 34 Cal. App. 344, 167 P. 404 oo. 8

Kelly v. Mangum, 145 Ga. 57, 58, 88 S. EB. 556 oo 2

Lee Won Sing v. Cottone, 123 F. 2d 169, 172, 76 App. D.C. 176. 2

People ex rel. Hutchings vy. Mallon, 218 Rep. Div. 461, 471, 218

N. Y. S. 432, aff'd, 245 N. Y. 521, 157 N. E. 842 ................... ere 3

People ex rel. Westbrook v. O’Neill, 378 Ill. 324, 327, 38 N. E.

et i a ga aeiaada.o Notun Soca Solaeoeoucaaa 3

Spencer v. Hamilton et al., 12 F. 2d 976, 977 cccccccccsssccsssnnn 2

State ex rel. Shapiro v. Wall, 187 Minn. 246, 249, 244 N. W. 811 2

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1952

Case No. 619

) WaTSON MOULTHROPE, Petitioner

vs.

Epwarp Matus, Respondent

RESPONDENT’S BRIEF TO PETITION FOR

WRIT OF CERTIORARI

carne

B

ie

CORRECTION OF PETITIONER’S STATEMENT :

The facts in this case are completely stated in the finding

of the Connecticut Superior Court (R. 13-15). The Connecticut .

Supreme Court of Errors in its opinion summarized the facts ¢

stated in the finding (R. 42, 43). '

©

The petitioner’s brief to this Court, bottom of page 4 and %

top of page 5 (quoted reference R. 22-25; 23, 25, 26), recites i

facts relating to the alleged custody and delivery of the 4

petitioner which are evidently based on the testimony of the

petitioner at the trial but were not found as facts in the

finding of the trial court. These allegations were not a part

of the facts considered by the Connecticut Supreme Court of

Errors and are not a part of the record before this Court.

:

The petitioner in his statement on page 5 of his Brief

alleges that in 1948 the Florida Board of Pardons withdrew

9 the conditional pardon granted petitioner in 1928 and ordered

his return to custody to serve the unexpired portion of his

original robbery sentence “and to serve the sentence of life

imprisonment for murder”.

GT Sa DR VAN LPR SOS SNE lp LE DED WEIS ASANO, hE

2

In fact, however, the requisition of the Governor of the

State of Florida for the return of the petitioner to that state

confines the ground of requisition to the crime of robbery

and does not include the crime and conviction of murder of

March 19, 1930. This fact is established in the finding of the

trial court (R. 15, par. 13).

REASONS FOR REFUSING THE WRIT

The question raised is whether the petitioner is a fugitive

from justice. The inquiry is one of fact, to be resolved by the

chief executive of the state upon which the demand is made.

His decision cannot be impeached unless it conclusively ap-

pears that the plaintiff couid not be, under the law, a fugitive.

Brewer v. Goff, 138 F. 2d 710, 712

The motive or purpose or belief of the petitioner at the

time of leaving the demanding state is of no consequence. He

is nevertheless a fugitive of justice and if found in another

state must be delivered up by the Governor of such State to

the State whose laws are alleged to have been violated on

production of such indictment or affidavit certified as authentic

by the Governor of the demanding state. Appleyard v. Massa-

chusetts, 203 U. S. 222, 227, 27 S. Ct. 122, 51 L. Ed. 161; Lee

Won Sing v. Cottone, 123 F. 2d 169, 172, 76 App. D. C. 176;

Barrett v. Bigger, 17 F: 2d 669, 670, cert. denied, 274 U. S. 752,

47 S. Ct. 765, 71 L. Ed. 1333.

The law is well established that if the prisoner was forc-

ibly removed from the state by federal authorities, he is still

a fugitive from justice. Ex parte Cohen, 104 N. J. Eq. S€0, 563,

146 A. 423; State ex rel. Shapiro v. Wall, 187 Minn. 246, 249,

244 N. W. 811; Kelly v. Mangum, 145 Ga. 57, 58, 88 S. E. 556;

Spencer v. Hamilton et al., 12 F. 2d 976, 977; 29 Col. L. Rev.

1157.

CE earn Te icine

In the case at bar the petitioner was a paroled convict

when he left the State of Florida with the consent of the

authorities and he nevertheless became a fugitive from justice

in Connecticut when his parole was revoked. Brewer v. Goff,

138 F. 2d 710, 712; People ex rel. Hutchings v. Mallon, 218

Rep. Div. 461, 471, 218 N. Y..S. 432, aff'd, 245 N. Y. 521, 157

N. E. 842; People ex rel. Westbrook v. O'N eill, 378 Ill. 324, 327,

38 N. E. 2d 174.

The same rule applies where the paroling state has forced

him to leave the state as a condition of parole. Broyles v.

Mount, 197 Ga. 659, 661, 30 S. E. 2d 48.

The petitioner’s claim that a delivery by the demanding

state constitutes a waiver is unsound. This is the minority

view as expressed In re Whittington, 34 Cal. App. 344, 167 P.

404. This view is subjected to sound criticism in 29 Columbia

Law Review, 1157, where the author points out that by its

application “the accused would by a second wrong escape

punishment for the first”.

The waiver rule would mean in effect that a man who has

committed a crime in Connecticut and subsequently commits

a crime in Florida in answer to extradition by Connecticut

could exercise a choice in the matter. He is placed in the

enviable position of deciding his own fate, because the Florida

authorities could only disagree at the risk of losing all control

over him. Such a rule will cause reluctance in the asylum

state to deliver a prisoner to the demanding state. It may well

encourage a fugitive from one state to commit a lesser crime

in another state to avoid the penalties of the first state. The

waiver rule would defeat the purpose of extradition which is

to prevent State boundaries from providing those charged

with crime with a means of asylum. The decision of the Con-

necticut Supreme Court of Errors upheld this principle and

rightfully repudiated the waiver theory.

Tigi BGR RR GT asi

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4

It is respectfully submitted that since the petitioner is

a fugitive from Florida justice, there was no error in the

judgment of the Conencticut Supreme Court of Errors in dis-

missing the petitioner’s writ of habeas corpus.

CONCLUSION

In view of the foregoing reasons the petition for a writ

of certiorari should not be granted.

Respectfully submitted,

JOSEPH F. BERRY

Counsel for Respondent

ROR SSO 8 URNS NIRS ness

PEF EET TIT eae