This is an appeal from a Judgment of the Circuit Court of Calhoun County denying appellant's discharge in a habeas corpus proceeding.
It appears from the trial court's order and the certificate of the judge that the hearing was upon the appellant's petition and the return of the Sheriff of Calhoun County. The return asserts that the petitioner was held under the authority of a rendition warrant issued by the Governor of Alabama upon requisition of the Governor of Mississippi and that a copy of the said rendition warrant and a copy of the requisition are attached to and made a part of the return.
The rendition warrant of the Governor of Alabama recites:
The requisition of the Governor of Mississippi shows:
Counsel for petitioner objected to the court's considering the rendition warrant and the requisition on the grounds that the affidavit and warrant was not attached to the request of the Governor of Mississippi. The court overruled the objection.
It is well settled that where, as here, the rendition warrant recites the essential jurisdictional facts, the presumption is that the Governor issued his warrant upon proper authority, and in order to make out a prima facie case for petitioner's detention it is not required that the return be accompanied by a certified copy of the accusation from the demanding state. Morrison v. State, 258 Ala. 410, 63 So.2d 346; State v. Smith, 32 Ala.App. 651, 29 So.2d 438; Clayton v. State, 33 Ala.App. 371, 33 So.2d 750.
Petitioner recognizes the foregoing principle, but insists that by attaching to the return the requisition of the Governor of Mississippi without also attaching a copy of the affidavit the respondent contradicted the prima facie showing made by the rendition warrant. His argument is based upon the theory of our decisions to the effect that where the state introduces into evidence, in addition to the rendition warrant, the requisition of the governor of the demanding state, and it shows on its face that it was insufficient upon which to predicate the rendition warrant the petitioner should be discharged. The cases cited and relied on by petitioner are as follows: Kelley v. State, 30 Ala.App. 21, 200 So. 115: Pierce v. Holcombe, 37 Ala.App. 305, 67 So.2d 278.
The requisition of the Governor of Mississippi was in proper form. The absence of an affidavit did not tend to negative the prima facie case made by the recitals of the rendition warrant. State v. Smith, supra; Clayton v. State, supra; Blanton v. State, 35 Ala.App. 591, 50 So.2d 786.
The record contains the following:
Counsel made no reference in his brief to the demand for inspection of the paper accompanying the requisition, but we think it well to point out that the demand is dated January 30th, the day of the hearing. It was not shown the state was given notice to produce the affidavit, nor was it shown the state had it in court. Moreover, the court's ruling was not invoked on the demand and there was no request for a continuance for the purpose of securing a copy of the affidavit, therefore, the matter is not presented for our review.
CATES, Judge (dissenting).
Respectfully, I vote to remand this cause. In spite of petitioner's demand for inspection of a certified copy of an indictment or affidavit charging him with felony or other crime in Mississippi (18 U.S.C. § 3182), nothing was produced.
Ex parte State, in re Mohr, 73 Ala. 503, McGahagin v. State, Ala.App., 131 So.2d 425, and Code 1940, T. 15, § 52, are but mere reflections of § 3182, supra.
Roberts v. Reilly, 116 U.S. 80, 6 S.Ct. 291, 29 L.Ed. 544, says that the question as to the fugitive's being substantially charged with a crime is one of law. This view is implicit in the Alabama statute conferring habeas corpus. The executive act is not res judicata. Code 1940, T. 15, § 27, significantly omits a rendition warrant.
My colleagues would exalt a presumption of regularity into a rule of law rather than merely one of evidence. To my view, after demand for production of either an indictment or affidavit, the State's failure to show any paper charging a crime makes the requisition warrant from the Governor of Mississippi contradict itself and the recitals of the rendition warrant. To me, the McGahagin case is indistinguishable from this one.
Moreover, even without petitioner's demand for the accompanying papers, it is persuasively arguable that the requisition warrant's failure to have "annexed" (as it recites) the charging affidavit would rebut any presumption arising from the recitals of the Governor of Alabama in the rendition warrant. Thus, in State ex rel. Daugherty v. Payne, 180 Tenn. 268, 174 S.W.2d 457, we find:
Opposed to McFarlin and Daugherty is the Texas case of Ex parte Gradington, 89 Tex.Cr.R. 432, 231 S.W. 781. This holding may well no longer be controlling in that State because of § 27 of the Uniform Criminal Extradition Act which became law in Texas June 15, 1951. Texas Code of Crim.Proc. Art. 1008a, §§ 1-30, particularly § 27. Vernon's Texas Stat., 1952 Supp., p. 969.
I cannot subscribe to the notion that, after the sheriff's return was in, the petitioner then had the burden of proof or persuasion. The papers to send petitioner off were in the custody of the State's officials and once having asked for them, what else could he do?
Nothing in Johnson v. State, 261 Ala. 1, 72 So.2d 863, supports the majority here. Indeed, Livingston, C. J., therein alluded to without gainsaying a statement by Carr, P. J., to the effect that refusal (after demand) to produce "will rebut the prima facie sufficiency of the governor's warrant." Cf. Code 1940, T. 7, §§ 487 and 488.
Harris v. State, 257 Ala. 3, 60 So.2d 266, certainly stands for a judicial examination of all extradition papers without making an impenetrable facade—like the Great Wall of China—of the rendition warrant. If, as in the Harris case, the State may bolster the rendition warrant with other papers, then certainly, when the bolstering (as it does here) contradicts the warrant, the warrant (like the presumption of innocence in the face of moral certainty of guilt) loses all its evidentiary value on the substantive issue.
We should not forget that extradition, while ordinarily a means to keep criminals from finding territorial asylum, is a kind of deportation that exists only by reason of law (Art. IV, § 2, cl. 2, U.S.Const.; 18 U.S.C. § 3182; Code 1940, T. 15, § 48 et seq). Because it is founded on law, its operation should follow the Rule of Law. The principles of adversary litigation should rigidly be confined in such a case. The State of Alabama should stand indifferent as between the accused and the demanding jurisdiction. When the accused asks for all the papers, they should be laid before the judge.
The judgment in this case shows no evidence adduced. Rather the entry shows the matter was heard on the petition and on the sheriff's return. Since the return was self-contradictory, then it follows that it does not justify the detention.