# Petition for Writ of Certiorari — Moulthrope v. Matus

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1953
- **Citation:** 345 U.S. 926

## Text

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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

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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
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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

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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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MPa Soe he ’

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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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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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
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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.

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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.

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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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386417_1556%3A1. Public record. Not legal advice.