Summary
holding that because the respondents-appellees in a habeas corpus proceeding did not file a cross-appeal, they could not challenge a ruling by trial judge in favor of the petitioner and "were not entitled to be heard in [the Supreme Court] except in support of the decree of the trial court"
Summary of this case from Albert v. StateOpinion
No. 36990.
October 24, 1949.
1. Extradition — rights of relator — state statutes and decisions not applicable.
The rights of the relator seeking release, in a habeas corpus proceeding, from an arrest and detention under an extradition warrant are determinable under the constitution, statutes, and the decisions of the Supreme Court of the United States, and state statutes and decisions are not applicable except to the extent that they may be in aid of, and not inconsistent with, the Constitution and laws of the United States on the question.
2. Extradition — prerequisites to right to surrender alleged fugitive — habeas corpus.
There are two indispensable prerequisites to right of the governor of asylum state to surrender an alleged fugitive on an extradition warrant: (1) The governor must be furnished with a copy of the indictment or affidavit charging the person demanded with the commission of the alleged crime certified as authentic by the governor or chief magistrate of the state or territory from whence the person so charged has fled, and (2) the governor of the asylum state must be satisfied that the alleged offender was in the demanding state at the time of the commission of the alleged crime and has departed therefrom into the state where he is found, and the conclusion of the governor of the asylum state is subject to judicial review on habeas corpus.
3. Extradition — habeas corpus — prima-facie case.
If the warrant of extradition and all the requisite papers are sufficient in form and substance they may be introduced in habeas corpus as sufficient to constitute a prima facie right to surrender the alleged fugitive, but the relator may nevertheless introduce proof to show that he was not in the demanding state at the time of the commission of the alleged crime.
4. Extradition — habeas corpus — scope of inquiry.
While the relator in a habeas corpus proceeding in asylum state may not show against an extradition warrant any other defense which he might make as to his guilt or innocence in a trial in the demanding state, he may show that he was not in the latter state at the time of the commission of the offense charged against him, and that therefore he is not a fugitive as to the offense so charged.
5. Extradition — habeas corpus — order committing to sheriff judicial determination whether extradition warrant sufficient.
When the trial court in a habeas corpus proceeding held that the warrant of extradition was insufficient, and remanded the relator to custody for a period of fifteen days to await the issuance of new extradition papers, the court's order, directing in effect, that the sheriff should determine the sufficiency of the new warrant, was erroneous and unenforceable as to the provision last mentioned, as it left open a judicial question to be determined by another than the court.
6. Extradition — habeas corpus — constitutional law — courts.
The relator in a habeas corpus proceeding against an extradition warrant has the constitutional right to have the trial judge as a judicial officer to pass upon the sufficiency of the extradition papers then before the court and to pass also upon the sufficiency of any such papers that were to be thereafter supplied in their stead.
7. Appeal — habeas corpus — cross-assignment of error — constitutional law.
The rule that an appellee, without a cross-assignment of error, will not be heard, except in support of the decree or decretal order from which the appeal has been taken, applies to the respondents, as appellees, in a habeas corpus proceeding; but where on the relator's appeal that part of the decree unfavorable to him must be reversed the entire decree will be vacated and reversed when it is necessary so to do in order to preserve the constitutional rights of relator and to furnish due process of law.
Headnotes as approved by McGehee, C.J.
APPEAL from the decree of the chancellor in a habeas corpus hearing in Hinds County; V.J. STRICKER, Chancellor.
J.E. Franklin and S.R. King, for appellant.
All proceedings in extradition arise and are controlled by the Federal constitution, being Par. 2, Sec. 2, Article 4 and Sec. 662 U.S.C.A. Title 18. The state courts of the various states in sitting on habeas corpus cases where extradition is sought exercise and perform the duties of Federal judges interpreting the Federal constitution and Federal laws and the Federal decision thereunder. See Ex Parte Walters, 107 Miss. 439, 64 So. 2, our original brief pages 20-24, and the many decisions of the United States Supreme Court there cited.
Briefly stated, under the Federal, as well as under the State statute, in order for the Governor to issue a warrant of extradition, copy of affidavit or indictment substantially charging the person demanded with having committed treason, felony or other crime, duly authenticated by the Governor of the demanding state, must be presented to the Governor of the asylum state.
The Governor of the asylum state has two functions to perform (a) to determine whether or not as a matter of law the prisoner is substantially charged with the commission of a crime in the demanding state and whether or not the requisition is in due and proper form; (b) whether or not the prisoner was a fugitive from justice from the demanding state, i.e., whether he was in the demanding state and fled to the asylum state. This is a question of fact. So it will be seen, the Governor is granted the power first to determine the legal sufficiency of the requisite papers and second to determine as a matter of fact whether or not the prisoner is a fugitive from justice within the meaning of the Federal Constitution and decisions. In the instant case, the Governor issued his warrant for the arrest and extradition of the appellant and petition for a writ of habeas corpus was sued out in the court below in which it was charged that the papers were not in due and legal form and that the indictment did not charge commission of a crime and that said papers were not duly authenticated in the manner required by law and that the appellant was not a fugitive from the State of Alabama within the meaning of the law.
The Governor of this State having issued the warrant of extradition made out a prima-facie case on both questions. It developed upon appellant in the court below to successfully show if he could, that the Governor was in error on any one of the grounds (a) or (b). The chancellor found and held that "the extradition proceedings including the certificates of the courts of Alabama, the capias and the extradition proceedings as a whole are not in proper order, form and substances for the issuance of the extradition warrant in this cause".
In other words, the court specifically and precisely held that the Governor's warrant had been illegally and improperly issued for the reason that the requisite proceedings were not sufficient in form or substance. And on this state of the record remanded the appellant to the custody of the sheriff there to be held for a period of fifteen days, after which time he was to be released and discharged from custody unless during said fifteen days the said sheriff shall not be served with a proper, legal and sufficient "warrant based upon proper, legal and sufficient papers and proceedings".
It will be observed that the lower court virtually held that the prisoner was being illegally detained of his liberty for the reason that the papers upon which the Governor's warrant was issued were not sufficient under the law in form or substance and not sufficiently authenticated as required by law and that the Governor was not authorized to issue the said writ thereon. It follows upon the decision of the court below as the night follows the day that the appellant then and there was entitled to his discharge from custody. See Commonwealth of Pennsylvania, ex rel. Richard C. Flower, Appt. v. Superintendent of the prison of Philadelphia, 220 Pa. 401, 69 A. 916, 21 L.R.A. (N.S.) 739, as well as the many cases cited in our original brief. It was submitted in our former brief that that part of the decree attempting to hold the appellant for fifteen days so as to give the Governor of Alabama time and opportunity to get out a new set of papers was without authority of law. The proper judgment, we insist, on the court's findings below was that the appellant be discharged. There was nothing under the court's ruling under and by which he could be legally held. But the chancellor attempted to grant the authorities of Alabama fifteen days in which to present proper, legal and sufficient papers and proceedings. We submit that this was the matter the court had no authority or jurisdiction to impose. He could do only one of two things (a) deny his petition and remand him to custody or (b) discharge him.
As said before, the court said he was improperly held but did not discharge him but ordered him held for fifteen days or such time within that period as new papers could be secured and furnished.
Now, it will be observed, that no cross-appeal was taken by the respondent from the decree of the court below. There not having been taken an appeal therefrom, it stands before this court unappealed from and more than six months having elapsed, the final adjudication by the chancellor of this question from which there was no appeal by the respondent had therefore under all the rules of law, it becomes res judicata on this question, it became the final judgment unappealed from and whether right or wrong, being unappealed from, it cannot be reversed. This court has no jurisdiction, being an appellate court only, to reverse the findings of the chancellor as to the sufficiency of the proceedings since there has been no cross-appeal by the respondent. In the case of Merchants' Manufacturers' Bank of Ellisville v. Hammer, et al., 166 Miss. 383, 148 So. 641, this court said: "Counsel for appellees, Hammer and Eyrich, undertake to argue that there was error in the decree of the chancellor in holding that clause was inserted by mistake. There was no appeal here as to that, and the decree is final in that respect, and is supported by the evidence in the case." See also Shepherd v. Johnston, 33 So.2d 614; Aetna Life Ins. Co. v. Thomas, 166 Miss. 53, 146 So. 134; Anderson v. Love, 169 Miss. 219, 151 So. 366; Dixon v. Breland, 6 So.2d 122.
Appellant did not challenge the validity of the court's ruling on the sufficiency of the papers but merely challenged that part of the decree ordering the appellant to be held fifteen days pending a new and sufficient set of extradition papers. In his opinion in this case, Mr. Justice Alexander on this very question says: "The extradition papers introduced at the hearing are found to be in order. The indictment which is duly authenticated charges a robbery and it is otherwise shown that the alleged offense was committed on September 13, 1947, at Birmingham in the State of Alabama."
We submit that this is error as this court cannot reverse the chancellor on any question not appealed from, nor can the court affirm him on his whole decision for the reason that if you affirm his judgment you must necessarily affirm that he was right in holding the extradition papers insufficient in form and substance. We say, it is not a question whether the chancellor was right or wrong in holding the extradition papers were insufficient in form and substance rendering the Governor's warrant issued thereon null and void but a question whether or not without a cross-appeal this court has jurisdiction to reverse the chancellor on this finding. As said before, this court is only an appellate court, it only decides issues as framed and presented in the court below. In many cases this court has refused to pass on questions the lower court has declined to pass on. It is obvious under the statutes, that any case not appealed from becomes final after six months whether right or wrong. The respondents could have prosecuted a cross-appeal from the finding of the chancellor on the sufficiency of the proceedings but they did not do so. Therefore, the only question presented here is whether or not the chancellor erred in holding the prisoner for the extra fifteen days. That was the part of the decree that was complained of and from which alone the appellant appealed.
It further appears from the opinion in affirming the court below, this court discussed the question of alibi, and, also, the question of whether or not the appellant was a fugitive from justice, and, further, that guilt or innocence was not an issue. With deference, we do not contend and have never contended alibi or guilt or innocence to be an issue here. But we did say and do say now whether or not the appellant was in the State of Alabama at the time of the commission of the crime is an important question — a jurisdictional question as to whether or not the appellant was a fugitive from justice from Alabama.
It is clear from this record, that the court below did not pass on this question. Certainly, it is not mentioned in the court's final decree. That final decree is predicated solely on the ground that the extradition proceedings were not in proper form and substance as required by law. In other words, it seems apparent that the court below having found the papers to be not in proper form and substance held that the appellant be held by the sheriff for an additional fifteen days so that new, legal and proper papers could be secured. The appellant won the case as to the question that he was unlawfully and illegally detained of his liberty but erroneously held an additional fifteen days so that new and legal papers could be secured from Alabama.
Now, we ask, what is the status of the matter at the present time? The order of this court on the opinion herein states: "This court having sufficiently examined and considered the same and being of the opinion that there is no error therein doth order and adjudge and decree that the decree of said Chancery Court rendered in this cause on the 27th day of March, 1948, be, and same is hereby affirmed."
Upon the affirmance of the decree below, it would seem that the appellant is entitled to be released unless the respondent has secured and presented to the court below within the time specified new, proper, legal and sufficient papers.
Who, we ask, is to pass on the question as to whether any new extradition warrant to be presented to the sheriff is upon proper and legal and sufficient extradition papers? Certainly, the sheriff is not to pass on this question. The appellant has a constitutional right to be heard on all these questions. It would seem that the court below merely delayed the case for a period of fifteen days before making a final decree so as to give the Alabama authorities time in which to secure and present new and legal extradition papers, and, if we are correct and this decree became final without a cross-appeal as against the respondent and if the fifteen days elapsed before the same were procured to the court below who had jurisdiction thereof, then the appellant is entitled to a discharge under the terms of the decree itself. Certainly, if there is an attempt or will be an attempt to present a new set of papers they should be submitted to the court below to determine their sufficiency. Otherwise, the decree left it open as to who is to pass on the legal question there involved.
We submit with all deference that the decree in the case at bar clashes "head on" with Todd v. Todd, 197 Miss. 819 Berryhill v. Berryhill 198 Miss. 759 and Griffith's Mississippi Practice, Secs. 625, 626. There is no away of reconciling the decree in the inst. case when viewed in the light of these authorities.
In the Todd case ib. the vitals of the decision are contained in the 4th syllabus as follows: "4. A decree should be complete within itself, containing no extraneous references, and leaving open no matters of description or designation out of which contention may arise as to the meaning."
In Berryhill v. Berryhill ib. the same principle was reaffirmed as revealed by the 5th and 6th syllabi as follows: "5. A decree should be complete within itself, containing no extraneous references, and leaving open no matters of description or designation out of which contention may arise as to the meaning.
Nor should a final decree leave open any judicial question to be determined by others, whether those others be the parties or be the officers charged with the execution of the decree, and even as to matters solely affecting the execution, if their nature be such as is likely to eventuate in dispute, reservation for further directions should be made if impossible safely to do otherwise.
We call attention to what we consider irreconcilable error in the opinion in this case, that the appellant was in the City of Jackson, Mississippi, and not in the City of Birmingham, Alabama, on Saturday night, September 13, 1947, when the alleged crime was supposed to have been committed. In other word, he was not in the State of Alabama, he did not flee from the State of Alabama, and therefore, under the Constitution and federal statutes could not have been a fugitive from justice of Alabama. The rule is clearly stated in Am. Jur., Vol. 22, p. 259, par. 21, that the Governor has two questions to pass on before granting extradition: "(1) Is the person detained substantially charged with a crime against the laws of the demanding state by indictment or affidavit before a magistrate? (2) Is the person a fugitive from justice of the demanding state?"
The first of these questions is one of law, while the second is one of fact. The Governor may not look behind the demand from the Governor of the demanding State and the accompanying papers because there is no prescribed rule of evidence required of him in determining whether the accused is a fugitive from justice of the demanding State or not. He may rely on the basis that certain statements, included in the demand itself or in the accompanying papers, either do or do not, establish a prima-facie case in this respect, subject, of course, to the right of the accused to show to the contrary upon hearing upon a writ of habeas corpus."
The writer of this text is following the universal holdings of the United States Supreme Court on this question. Many of the cases cited in our brief and reply brief which we will not here repeat are to this effect. We again repeat that these two questions are at the very threshold of the Governor's consideration and issuance of his warrant of extradition. Both can be inquired into in habeas corpus and if either appears to be lacking, the Governor's warrant of extradition was issued without jurisdiction and according to many United States Supreme Court decisions cited in our brief is absolutely null and void.
We who tried this case before the chancellor know that the chancellor did not try this latter issue — i.e., as to whether or not the appellant was in the City of Jackson, Mississippi, and not in Birmingham, Alabama, at the time the alleged crime was supposed to have been committed, and, therefore, did not flee from Alabama, and was not a fugitive from justice of State. We again assert that the chancellor treated all this testimony as alibi testimony, admissible only on a trial of the defendant on the merits. His judgment or decree certainly does not mention it. It seems that this court in its opinion is treating the matter of the appellant being a fugitive from justice from Alabama as decided, because neither side pressed the chancellor for a decision on his reservation in the admission of this testimony. It would seem that the opinion holds that the chancellor decided this question inferentially. Can it be possible that such an all important jurisdictional question can be decided by inference — putting the matter differently, isn't it true that on this question of jurisdiction, the chancellor was required to make a positive finding? We again submit that the only finding of the chancellor was that the papers were not in proper form or substance upon which the governor's warrant could issue and said absolutely nothing on the question of whether or not he was a fugitive from justice.
We submit that the opinion in Southern Package Corporation v. Beall, 181 Miss. 740, 182 Miss. 557, 180 So. 789, furnishes the "torch in the night" that will lead us out of this bewilderment in which we find ourselves in this case.
R.O. Arrington, Assistant Attorney General, for appellees.
Section 2836, Code 1942, reads as follows: Conclusiveness of judgment. ____ The judgment rendered on the trial of any writ of habeas corpus shall be conclusive until reversed, and, whilst so in force, shall be a bar to another habeas corpus in the same cause, or to any other proceedings, to bring the same matter again in question, except by appeal or by action for false imprisonment; nor shall any person so discharged be afterward confined for the same cause, except by a court of competent jurisdiction."
Under this statute the chancellor's order is a final judgment and is appealable. Therefore, I submit with deference that the cases of Todd v. Todd, 197 Miss. 819, 20 So.2d 827, and Berryhill v. Berryhill, 198 Miss. 759, 23 So.2d 889, which cases quote and are based upon Griffith's Mississippi Chancery Practice, (Sections 625 and 626), are not applicable and controlling in a habeas corpus proceeding which can be heard by the judges of any of the courts as set out in the statute.
Section 2831, Code 1942, is in part as follows: "The trial. — The judge or chancellor before whom the prisoner or other person may be brought, shall inquire into the cause of imprisonment or detention, and shall either discharge, commit, admit to bail, or remand the prisoner, or award the custody to the party entitled thereto, as the law and the evidence shall require; . . ."
The evidence in this case, although conflicting, shows that the relator was in the State of Alabama and committed two capital offenses and the chancellor who was the trier of the facts was justified in remanding him to custody although he further held that the requisition papers and Governor's warrant were insufficient. Section 2817, Code 1942, reads as follows: "Not discharged on account of defective proceedings. — If it appear on the trial of any habeas corpus that the relator is held by virtue of proceedings against him for crime which are invalid, the judge shall not discharge the relator because thereof, but shall investigate the facts; and if it be found that he ought to be held for any crime alleged against him, the judge shall not discharge him, but shall commit him or require bail, according to the nature of the case."
In Stallings v. Splain, 64 L.Ed. 940 in a habeas corpus proceeding where the relator contended that his original arrest and detention were unlawful, the court held: "First. The original arrest and detention were lawful. A person duly charged with a felony in one state may, if he flees to another, be arrested, without warrant, by a peace officer in the state in which he is found, and be detained for the reasonable time necessary to enable a requisition to be made. Burton v. New York C. H.R.R. Co., 245 U.S. 315, 318, 62 L.Ed. 314, 320, 38 Sup. Ct. Rep. 108. See Kurtz v. Moffitt, 115 U.S. 487, 504, 29 L.Ed. 458, 462, 6 Sup. Ct. Rep. 148." See also Mahler v. Eby, 68 L.Ed. 549.
With reference to the question that the chancellor did not make and was not requested to make a special finding of the facts with reference to whether or not the relator was a fugitive from justice from the State of Alabama, it is submitted that his decree is sufficient upon that question and upon analysis is not subject to any other construction than that he was a fugitive from justice. The decree provided "That the relator, John Thomas Bishop, be remanded back to and held in custody by the said Albert Jones, Sheriff of Hinds County, Mississippi, for a period of fifteen days, after which time the relator shall be released and discharged from custody unless during said fifteen days' period the said sheriff shall not be served with a proper, legal and sufficient extradition warrant based upon proper, legal and sufficient papers and proceedings." If the chancellor had not found that the relator was a fugitive, why did he order in his decree that the new requisition papers be issued by the authorities of the State of Alabama and that the Governor of Mississippi issue a new extradition warrant based upon the new papers. The only answer to this is that he was found to be a fugitive from justice and was to be delivered to the Alabama authorities.
Referring to the court's decree, it will be observed that the court ordered the respondents to return the extradition papers to the proper authorities in the State of Alabama and obtain new, proper and sufficient papers. As counsel for the respondents, I advised them to comply with the court's decree. At the time, as I understood the situation, the respondents had nothing to gain by a cross-appeal. If the respondents had appealed, the sheriff was ordered to release the relator in the absence of new papers. Therefore, had the respondents appealed and had been successful, the relator would no doubt have absconded after being released from custody and the judgment would have been a vain or idle thing.
In the case of South Carolina v. Bailey, 77 L.Ed. 1292, the court held in a similar proceeding that habeas corpus is not the proper proceeding to try the question of alibi or any question as to the guilt or innocence of the accused. The only purpose of the evidence went to the question solely as to whether or not the relator was in the State of Alabama when the alleged offense was committed. In this case the court also held that it was the duty of the state court to follow the federal decisions in extradition cases.
"3. It is the duty of a state court in habeas corpus proceedings brought by one whose extradition to another state has been sought, to administer the law prescribed by the Constitution and statute of the United States, as construed by the Supreme Court of the United States." 77 L.Ed. 1292, Syllabus 3.
In Cole v. Cole, 194 Miss. 292, 12 So.2d 425, in a habeas corpus proceeding, the court said: ". . . Two things an appellant must show in order to obtain a reversal of the judgment appealed from: (1) Error therein, and (2) that he was prejudiced thereby — that he was deprived of a substantial right. Mississippi State Highway Dept. v. Meador, 184 Miss. 381, 391, 185 So. 267. . ."
I submit that the court's opinion is correct and that the suggestion of error filed herein should be overruled. When the mandate of this court goes down, the sheriff of Hinds County, acting upon the Governor of Mississippi's extradition warrant will deliver him to the agent of the State of Alabama, subject to, of course, if the relator desires, a court proceeding to test the sufficiency of the extradition papers, including the Governor's warrant.
ON SUGGESTION OF ERROR
This is a habeas corpus proceeding brought by the relator John Thomas Bishop, who was then in the custody of the appellee Albert Jones, Sheriff of Hinds County, and about to be surrendered to certain agents of the Governor of the State of Alabama on an extradition warrant of the Governor of Mississippi as a fugitive from the justice of Alabama, where he is charged with the crime of robbery with firearms, a capital felony under the laws of the State.
The petition for the writ of habeas corpus sets forth two grounds as to why the relator should be released from custody: First, that the extradition proceedings are not in due and legal form, and are therefore, insufficient as to form and substance, improperly authenticated and void and of no effect; second, that the relator is not in fact a fugitive from the justice of Alabama, for the reason that he was in Jackson, Mississippi, at the time of the commission of the crime of robbery in Birmingham, Alabama, with which he is charged in the indictment.
(Hn 1) The rights of the relator are to be determined by Section 2, paragraph 2, of Article IV of the Constitution of the United States, as implemented by Section 662 [now § 3182], Title 18, U.S.C.A., and the decisions of the Supreme Court of the United States construing such constitutional provision and this federal statute, together with the help of state court decisions not inconsistent with the supreme law on the question of interstate extradition. State statutes and decisions relating to habeas corpus and extradition, such as our Code chapter on Habeas Corpus, Section 2815 et seq., Code of 1942, and Section 3981 thereof, are not applicable to interstate extradition except to the extent that they may be in aid of, and not inconsistent with, the Constitution and laws of the United States on the question.
(Hn 2) The first indispensable prerequisite to the right of the Governor of the asylum state to surrender an alleged offender to the authorities of the demanding state is that such Governor be furnished with a copy of an indictment found by a grand jury or an affidavit made before a magistrate of the demanding state or territory, charging the person demanded with the commission of the alleged crime, certified as authentic by the Governor or chief magistrate of the state or territory from whence the person so charged has fled. And, second, the Governor of the asylum state must be satisfied, either from an inquiry conducted by him at his option or on the basis of the prima facie presumption carried by the regularity of the extradition proceedings, that the alleged offender is a fugitive from justice of the demanding state; that is to say, that he was in the demanding state at the time of the commission of the alleged crime and has departed therefrom into the state where he is found. The existence of these two prerequisites is essential and jurisdictional to the right of the Governor of one state to deliver a citizen of his state to the authorities of another to be tried for crime, and his conclusion in that behalf is of course subject to judicial review on habeas corpus.
The relator in a habeas corpus proceeding is entitled to show that either or both of the above mentioned jurisdictional facts for interstate extradition are nonexistent.
(Hn 3) If the Governor's warrant of extradition and all of the requisition papers are sufficient in form and substance they may be introduced at the hearing to constitute a prima facie right on the part of the respondent or respondents to surrender the alleged defendant to the demanding state, but the relator may nevertheless introduce proof before the court where the habeas corpus petition is being heard to show that he was not in the demanding state at the time of the commission of the alleged crime, and that he could not therefore be a fugitive from the justice of a state where he has not been at all or where he was not at the time the crime was committed. South Carolina v. Bailey, 289 U.S. 412, 53 S.Ct. 667, 77 L.Ed. 1292; 25 Am. Jur. Sec. 71, page 197 and numerous Federal Supreme Court decisions cited thereunder; 39 C.J.S., Habeas Corpus, § 39 (d), page 554; Ex parte Walters, 106 Miss. 439, 64 So. 2; 51 A.L.R. 798; 61 A.L.R. 715; and cases cited in the annotation of Section 662 [now § 3182] Title 18, U.S.C.A.
While such proof necessarily involves the facts which would constitute an alibi, there is an obvious distinction between proof of absence from the demanding state for the purpose of negativing the condition of extradition, that one is a fugitive from justice, and proof of an alibi as such for the purpose of establishing one's innocence. Roberts v. Reilly, 116 U.S. 80, 95, 6 S.Ct. 291, 299, 29 L.Ed. 544, 549; Annotation 51 A.L.R. p. 797.
In the case of Grace v. Dogan, Sheriff, 151 Miss. 267, 117 So. 596, 61 A.L.R. 709, this Court said in effect that it knew of no case from the United States Supreme Court later than the cases of Appleyard v. Massachusetts, 203 U.S. 222, 27 S.Ct. 122, 51 L.Ed. 161, and Biddinger v. Police Commissioner, 245 U.S. 128, 38 S.Ct. 41, 62 L.Ed. 193, in which that Court had expressly decided that the executive conclusion that the person accused was a fugitive from justice may be overthrown by proof tending to show that the accused was not in the demanding state at the time the crime was alleged to have been committed; and the court held that "in the absence of an authoritative decision of that court on the question, we feel constrained to follow a prior decision of this court, Ex parte Edwards, 91 Miss. 621, 44 So. 827, expressly holding that such evidence is inadmissible." [ 151 Miss. 267, 117 So. 599].
(Hn 4) Prior to the decision in the Grace case, supra, this Court had held in Ex parte John Devine, 74 Miss. 715, 22 So. 3, that the guilt or innocence of a relator can not be inquired into on habeas corpus in this State. However, in that case the relator was merely attempting to show that he had committed no crime in the demanding state. It is to be conceded that if an accused was charged with murder in the demanding state he could not show in a habeas corpus proceeding in the asylum state that he committed the homicide in self-defense and thereby establish his innocence, or that he was insane when the crime was committed, or that the prosecution is for a crime of such character as to be barred by some statute of limitation as in the Biddinger case, supra.
However, this court held in Ex parte Walters, 106 Miss. 439, 64 So. 2, 4, not mentioned in Grace v. Dogan, supra, and being the noted case of the alleged kidnapping of Bobby Dunbar at Opelousas, Louisiana, that:
"While a prima-facie case is made in favor of extradition, still habeas corpus proceedings may be resorted to, for the purpose of determining whether the accused is subject to be returned to the demanding state as a fugitive from justice. This seems fully settled in the case of McNichols v. Pease, ( 207 U.S. 100, 28 S.Ct. 58, 52 L.Ed. 121). Mr. Justice Harlan, delivering the opinion of the court, stated that certain principles, which he set forth, and from which we have quoted above, are deduced from the cases already decided by the Supreme Court of the United States, all of which he cited. We quote further from his opinion as follows: `A proceeding by habeas corpus in a court of competent jurisdiction is appropriate for determining whether the accused is subject, in virtue of the warrant of arrest, to be taken as a fugitive from the justice of the state in which he is found to the state whose laws he is charged with violating. One arrested and held as a fugitive from justice is entitled of right, upon habeas corpus to question the lawfulness of his arrest and imprisonment, showing by competent evidence, as a ground for his release, that he was not, within the meaning of the Constitution and laws of the United States, a fugitive from the justice of the demanding state, and thereby overcoming the presumption to the contrary arising from the face of an extradition warrant.'"
At any rate, the right of an accused to prove on habeas corpus that he is not a fugitive from the justice of the demanding state is now well settled by the authorities hereinbefore cited, which are much more recent than the Appleyard and Biddinger cases, supra, referred to by our Court in the Grace case. Moreover, the Appleyard case recognized such right, and the Biddinger case did not involve the question as to whether or not the relator was in the demanding state at the time complained of. And it is also now well settled that the decision of the Governor of the asylum state, when holding the extradition proceedings to be sufficient in form and substance as a jurisdictional prerequisite to granting relief to the demanding state, is subject to review in a habeas corpus proceeding brought by the accused. Robb v. Connolly, 111 U.S. 624, 4 S.Ct. 544, 28 L.Ed. 542; Roberts v. Reilly, supra; and other cases annotated in 81 A.L.R. 558, including former decisions of our own court.
At the hearing of the petition for the writ of habeas corpus in the instant case before the judge of the chancery court the respondents Albert Jones and others introduced the extradition warrant of the Governor of Mississippi and the extradition proceedings from the State of Alabama, and rested their case. Thereupon the relator introduced several witnesses who testified over the objection of the respondents that the relator was in the City of Jackson, Mississippi, on the date and occasion when the robberies complained of were committed in Birmingham, Alabama. This testimony was sufficient, if believed, to conclusively show that the relator was not a fugitive from the justice of Alabama. On the other hand, the victims of the robbery, who were offered in rebuttal, testified to the contrary, and if they are to be believed the relator was such a fugitive.
When the testimony of the last witness at the habeas corpus hearing was about to be concluded, the trial judge announced: "All this evidence that pertains to his guilt or innocence, whether by alibi or mistaken identity, is objected to. It is permitted to go in on a reserved rule. Go along." The examination of this witness was soon thereafter concluded and covers only about one page of the Court Reporter's transcript following this announcement of the Court. The Court did not thereafter make an express ruling on the objection to any of the testimony thus offered by the relator. (Hn 5) Both sides having then rested their case the court rendered a decree wherein he expressly held that "the extradition proceedings, including the certificates of the court of Alabama, the capias and the extradition proceedings as a whole, are not in proper order, form and substance for the issuance of the extradition warrant in this cause.
"It is therefore ordered, adjudged and decreed that the respondents return said extradition papers and proceedings back to the proper authorities in the State of Alabama, in order that proper and sufficient papers and proceedings may issue, applying to the Governor of this State for the issuance of a new extradition warrant, based on proper and legal proceedings; that the relator, John Thomas Bishop, be remanded back to and held in custody by the said Albert Jones, Sheriff of Hinds County, Mississippi, for a period of fifteen days, after which time the relator shall be released and discharged from custody unless during said fifteen days' period the said sheriff shall be served with a proper, legal and sufficient extradition warrant based upon proper, legal and sufficient papers and proceedings.
"Right of appeal granted."
Therefore, it will be noted that it is not adjudicated by any of the express terms of the decree whether or not under the conflicting evidence the court was of the opinion that the relator was a fugitive from the justice of Alabama. It may be that the foregoing provision of the decree ordering the relator to "be remanded back to and held in custody for a period of fifteen days, after which time the relator shall be released" unless certain conditions are complied with, amounts to a finding that the relator was a fugitive from the justice of Alabama, but then too this provision of the decree may have resulted from a conclusion of the trial judge that under the previous decisions of this Court in the Devine, Edwards and Grace cases the testimony had to do with the guilt or innocence of the accused and could be heard only in the trial of the case in the State of Alabama. However that may be, we have reached the conclusion that the decree as rendered should not be affirmed for two reasons: First, it contains an express adjudication of the nonexistence of one of the two indispensable jurisdictional facts, to-wit, the sufficiency of the extradition proceedings in form and substance as an essential prerequisite to the authority of the court to order the accused to be delivered to the authorities of the demanding state, and, second, because the decree on its face appears to have left to the determination of Albert Jones, as sheriff of Hinds County, Mississippi, the judicial question as to whether or not within the period of fifteen days provided for he was served with "a proper, legal and sufficient extradition warrant based upon proper, legal and sufficient papers and proceedings."
In the recent case of Berryhill v. Berryhill, 198 Miss. 759, 23 So.2d 889, 890, where the effect of a provision in the decree was to leave to the determination of the clerk of the court an issue there involved, the court said: "In this respect, the decree was indefinite and uncertain and therefore unenforceable." Therein the court cited the case of Todd v. Todd, 197 Miss. 819, 20 So.2d 827, 831, and Griffith's Mississippi Chancery Practice, Sections 625 and 626, as authority for the legal principle that a final decree should not "leave open any judicial question to be determined by others, whether those others be the parties or be the officers charged with the execution of the decree . . .".
When the trial judge in the instant case reached the conclusion and so adjudicated that the extradition proceedings were insufficient both in form and substance, and void and of no effect, he should have either discharged the relator or continued the hearing to a date in the near future for sufficient papers in that regard to be submitted to him, instead of to the sheriff, and should not have rendered the decree here involved and from which he granted this appeal, since a vital part of the evidence introduced and relied upon by the respondents as their authority to hold the relator in custody and surrender him to the demanding state was the Governor's extradition warrant and the extradition proceedings, which were held to be insufficient as aforesaid. (Hn 6) In other words, the accused had the constitutional right under his petition for writ of habeas corpus to have the trial judge as a judicial officer to not only pass upon the sufficiency of the extradition proceedings then before the court, but also the sufficiency of any such papers that were to be thereafter supplied in their stead.
(Hn 7) When our former opinion was rendered in this cause, Bishop v. Jones, Miss., 38 So.2d 920, our attention had not been called to the fact that the respondents had failed to reserve an exception or file a cross-assignment of error in regard to the adverse ruling of the trial judge in holding that the extradition proceedings were as a matter of law insufficient both as to form and substance. Without such a cross-assignment of error (essential to entitle us to review for the respondents on this appeal the adverse ruling of the trial judge where no exception was reserved thereto as was done in the case of Thomas v. State, 73 Miss. 46, 19 So. 195) and our attention not being called to the absence thereof, we were led into the error of reviewing such ruling contrary to the principle announced in the cases of Merchants Manufacturers Bank v. Hammer, et al., 166 Miss. 383, 148 So. 641; Shepherd v. Johnston, 203 Miss. 120, 33 So.2d 614; Aetna Life Ins. Co. v. Thomas, 166 Miss. 53, 144 So. 50, 146 So. 134; Anderson v. Love, 169 Miss. 219, 151 So. 366, 153 So. 369; and Dixon v. Breland, 192 Miss. 335, 6 So.2d 122. In other words, the appellees were not entitled to be heard in this court except in support of the decree of the trial court, as was expressly held in the cases cited in the Dixon v. Breland, supra. Section 1153, Code of 1942, was enacted to afford the state a method for obtaining a review of an adverse ruling on a question of law, and the respondents here are in no better position than the state would be without a cross-assignment of error or cross-appeal.
In his reply brief filed before the former opinion was rendered herein, the relator made the observation that: "The learned chancellor on the habeas corpus trial specifically held that these papers were wholly insufficient in form and substance and until appealed from, his decision stands as the law of the case on that question." And he then explained that the illegality of the extradition proceedings was not being stressed in his briefs "for the good and sufficient reason that the chancellor had held with us on that question and in the absence of an appeal by the appellees that became a foreclosed question so far as this appeal is concerned." The appellees still failed to file a cross-assignment of error as to this adverse ruling and express adjudication in the decree of the trial court on this question of law, so as to obtain a review of such ruling on this appeal. On the contrary, they sought an affirmance of the decree appealed from. After such affirmance the question was seasonably raised by a suggestion of error that we had affirmed the adjudication of the trial judge as to the non-existence of a necessary jurisdictional fact and had nevertheless stated in effect that his adjudication in that behalf was erroneous, although no cross-assignment of error had been filed.
Nor was the specific point raised by any of the parties in regard to the provisions of the decree which undertook to delegate to the sheriff, an executive officer, the power to judicially determine if and when legal extradition proceedings were submitted to him as authority for surrendering the relator to the demanding state.
However, if we should affirm the decree as rendered, containing as it does an express adjudication of the non-existence of an indispensable jurisdictional fact, and should thereby make it possible for the relator to be surrendered to the authorities of Alabama, he would be denied his constitutional right to have the trial judge fully hear and determine his legal rights under the petition for habeas corpus and would be further restrained of his liberty without due process of law.
We have, therefore, concluded to withdraw the former opinion and to reverse and remand the cause in order that the habeas corpus hearing may be proceeded with until all the evidence relied on by both the appellant and the appellees shall have been introduced for the consideration of the trial judge, and in order that in the event extradition papers are introduced by the respondents which are legal in all respects the trial judge may then pass upon the issue of fact as to whether or not the relator is a fugitive from justice of the State of Alabama, if it be true, as contended by the relator, that he has not already passed upon such issue of fact in the light of the testimony on the question as to whether or not the accused is a fugitive from justice. That is to say, if the trial judge has regarded this testimony as being incompetent under the decisions of this court in the Devine, Edwards and Grace cases, which were decided prior to the decision of the Supreme Court of the United States in South Carolina v. Bailey, supra, and has ordered the relator committed to the custody of the sheriff upon the theory that he should be surrendered to the demanding state upon the furnishing of legally sufficient extradition proceedings without regard to the testimony as to whether or not the accused was in the demanding state at the time of the commission of the crime, the relator would be entitled on remand to have his rights determined both as to the sufficiency of the new extradition proceedings and on the testimony offered on the issue of fact as to whether or not he is a fugitive from justice within the meaning of the Constitution and laws of the United States.
The former opinion is withdrawn, which in effect sustains the suggestion of error, and the cause is reversed and remanded.
Reversed and remanded on suggestion of error.