Opinion
No. 191.
Argued February 28, 1972. —
Decided March 30, 1972.
APPEAL from an order of the county court of Rock county: EDWIN C. DAHLBERG, Judge. Affirmed.
For the petitioner there was a brief by Prazak Geffs of Clinton, and oral argument by Jacob Geffs.
For the respondent the cause was argued by Robert D. Martinson, assistant attorney general, with whom on the brief was Robert W. Warren, attorney general.
Facts.
On March 25, 1970, a North Carolina grand jury indicted petitioner-appellant, Cyrus Welch, and others for conspiring to commit false pretenses. Allegedly, petitioner and the others met in mid-August, 1968, in Johnston county, North Carolina, and set up a plan whereby they advertised in newspapers to solicit loan applications, claiming loan money was available from various organizations, including Church of Christ Manors, Inc., of which petitioner was president. Allegedly, applicants for such loans were told loan money was available and, upon payment of a fee, a "loan commitment" would be issued which was represented as being valuable in obtaining the loan. Allegedly, such "loan commitments" were valueless. The grand jury indictment specified 10 separate incidents in which such "loan commitments" were issued with total fees received by those indicted being in excess of $40,000.
On May 1, 1970, petitioner was arrested in Wisconsin upon a fugitive warrant issued by County Judge EDWIN C. DAHLBERG. The fugitive warrant was based upon an affidavit, complaint for arrest, and arrest warrant subscribed and sworn to before a North Carolina magistrate by Donald H. Jones, special agent of the North Carolina department of justice. The fugitive warrant was also based upon a fugitive complaint subscribed and sworn to by Tom Richards, deputy sheriff of Rock county, Wisconsin. Complaints and warrants allege that, on December 12, 1968, in Johnston county, North Carolina, petitioner obtained $2,700 from Ray M. Atkinson by false pretense. (Ray M. Atkinson signed the North Carolina arrest warrant as a witness.) Petitioner filed an "answer and petition for writ of habeas corpus," claiming that his imprisonment was ". . . based upon a mistaken identification of this defendant . . . ."
On September 24, 1970, a governor's warrant was issued, based upon the North Carolina affidavit, complaint for arrest and arrest warrant. On September 28, 1970, the case was heard. It was stipulated that the "answer and petition for writ of habeas corpus" was to stand as a petition for writ of habeas corpus and to ". . . proceed on the arrest on the Governor's warrant. . . ." "Petitioner testified that he had not been in North Carolina in December, 1968. Complainant Ray M. Atkinson testified that he had not dealt with petitioner in North Carolina, but had dealt with Jesse Noah Williams, one of the parties named by the grand jury, who had represented Foundation of the Christian Churches of America, also indicted by the grand jury. When, after paying his $2,700 fee and not getting any loan, Atkinson complained to Williams, and testified he was referred to the man in charge of loan commitments: A Cyrus Welch, residing in Footville, Wisconsin. Atkinson telephoned and the person who answered the telephone in Footville identified himself as the Reverend Cyrus Welch and they discussed the loan application. Additionally, a Howard Norris, who knew petitioner as Cyrus Welch and had met him in North Carolina, testified that he had paid $10,000 to Jesse Noah Williams for a "loan commitment," and had received such "loan commitment" signed by Cyrus H. Welch, president of Church of Christ Manors, Inc. (Petitioner was indicted in North Carolina individually and as president of Church of Christ Manors, Inc.) Norris testified he never got a loan. On the issue raised of "mistaken identity," the trial court found that the petitioner was the party being sought by North Carolina. Petitioner appeals.
The "mistaken identity" argument is not being pursued on this appeal. It is clear, and undisputed, that the petitioner is the party being sought by the state of North Carolina for conspiring with others to commit false pretenses. It is as clear, although not undisputed, that "mistaken identity" was the sole issue raised by petitioner at the trial court hearing. The petition for writ of habeas corpus recites:
"4. That the imprisonment of the petitioner as alleged is illegal and contrary to law, in that it is based upon a mistaken identification of this defendant; that the defendant was never in the county of Johnston, North Carolina at any time in his life; that the defendant was not in the state of North Carolina during the months of October, November and December of 1968; that he never met Ray M. Atkinson at any time in his lifetime and never had any dealings with him directly or indirectly; that the complaint for arrest was a mistaken identification in that it describes the defendant as a White male and the fact is, that the defendant is an Iroquois Indian; that this court has jurisdiction under section 964.20, Wisconsin statutes to determine the identification of the person charged with a crime."
On the only issue raised by petitioner's pleading, that of "mistaken identity," the trial court found no mistake. Substantial evidence supports that finding, and no challenge is made to that finding. Correctness of identity is now conceded. However, petitioner by counsel, on appeal, claims that: "The question before the court on the writ of habeas corpus was whether or not Cyrus H. Welch was present in Johnston county, North Carolina, on or about December 12, 1968." Whether viewed as an alibi or defense on the merits, this issue the trial court did not reach. This question, going beyond the identity issue raised, the trial court held it was not obliged to answer.
The only issue raised by petitioner in his petition for writ of habeas corpus was the identity issue. It is true that, in support of the claim, since abandoned, of "mistaken identity," petitioner stated that he ". . . was never in the county of Johnston, North Carolina, at any time," that he ". . . was not in the state of North Carolina during . . . December of 1968," that he ". . . never met Ray M. Atkinson . . . and never had any dealings with him." But these statements relate or can be related here only to the sole issue raised: The claim of "mistaken identity." Their inclusion did not require a determination of guilt or innocence or existence of alibi at the habeas corpus proceeding. In fact, exactly as this court has stated:
"It is clear that evidence which goes to the guilt or innocence of the accused may not be inquired into, either by the governor or any proceeding after the demand for extradition if a charge of a crime in legal form has been presented to the governor except as such issue is indirectly involved in the identification of the person held as the one charged with the crime . . . ."
State ex rel. Foster v. Uttech (1966), 31 Wis.2d 664, 670, 143 N.W.2d 500.
Under this rule of admissibility as to identification questions only, the trial court was entirely correct in admitting testimony at the hearing as to when the petitioner had been in the state of North Carolina, and equally correct in holding that such evidence was to be considered only on the issue raised — that of identification of the person held as the person charged. It is true that this court has permitted trial courts in habeas corpus proceedings to ". . . examine into constitutional questions affecting the legality of the arrest in this state for extradition at least where constitutional standards are shown not to have been complied with on the face of the documents. . . ." (Emphasis supplied.) This includes a right to ". . . examine the sufficiency of the foundation documents, . . ." the information or affidavit and warrant ". . . to see if the demand or requisition is proper and can serve as a valid basis for a governor's rendition warrant." Upon such challenge to the validity of arrest, which must be timely made, the issue becomes ". . . the sufficiency of the governor's warrant and not the procedural irregularities before the trial court of a sister state." Such right to timely raise issues of constitutional dimension can include an attack upon the affidavit upon which a finding of probable cause was made in the requesting state as constitutionally insufficient. But such right to raise issues of constitutional infirmity does not extend to the right to assert an alibi or deny the charges brought on the merits. Guilt or innocence are to be determined at the time and place of trial, not on the occasion of a hearing on habeas corpus as to whether the person charged is to be returned to the requesting state to face trial.
Id. at page 671, quoted with approval in State ex rel. Lutchin v. Outagamie County Court (1969), 42 Wis.2d 78, 84, 85, 165 N.W.2d 593.
Id. at page 671.
Id. at page 671.
State ex rel. Lutchin v. Outagamie County Court, supra, at page 86.
Id. at page 86.
State v. Towne (1970), 46 Wis.2d 169, 170, 174 N.W.2d 251.
While the question of whether petitioner is a "fugitive from justice" is not raised by petitioner or the state, for the sake of completeness, we note the applicability of the revised Uniform Extradition Act which became effective in Wisconsin on July 1, 1970, about three months before the issuance of the governor's warrant in this case. In the absence of express statutory provision, it could be argued that extradition lies only for "fugitives from justice," and one who acts in one state, thereby committing a crime in another state, is not to be considered as a "fugitive from justice" of the state in which the crime took place. However, the revised Uniform Extradition Act, in sec. 976.03(6), Stats., specifically provides:
Hyatt v. Corkran (1903), 188 U.S. 691, 719, 23 Sup. Ct. 456, 47 L. Ed. 657.
"EXTRADITION OF PERSONS CHARGED WITH HAVING COMMITTED A CRIME IN THE DEMANDING STATE BY ACTS DONE IN THIS OR SOME OTHER STATE. The governor of this state may also surrender, on demand of the executive authority of any other state, any person in this state charged in such other state as provided in sub. (3) with committing an act in this state, or in a third state, intentionally resulting in a crime in the state whose executive authority is making the demand; and the provisions of this section not otherwise inconsistent shall apply to such cases, notwithstanding that the accused was not in that state at the time of the commission of the crime, and has not fled therefrom." (Emphasis supplied.)
Because (1) the sole issue raised by petition for writ of habeas corpus was that of "mistaken identity;" (2) alibi or questions as to guilt or innocence were beyond the scope of inquiry in this habeas corpus proceeding; and (3) sec. 976.03(6), Stats., authorizes extradition for acts in this state, intentionally resulting in a crime in the demanding state, the trial court properly denied habeas corpus.
By the Court. — Order affirmed.