Opinion
No. 81-1885
Decided June 30, 1982.
Habeas corpus — Fugitive from justice — Arrest under Governor's warrant — Petitioner not entitled to discharge, when.
APPEAL from the Court of Appeals for Lucas County.
This case is before the court on an appeal from the denial of two petitions for a writ of habeas corpus by the Court of Appeals.
Petitioner was arrested and incarcerated by officers of the police department of Toledo on June 30, 1981, and charged with forgery (R.C. 2913.31). Subsequently, the Lucas County Sheriff's Office learned that petitioner was under indictment in the state of Georgia for several felonies. The state of Georgia filed a fugitive warrant on July 30, 1981, requesting petitioner's return to that state.
Petitioner filed the petitions in the Court of Appeals for Lucas County alleging that his detention pursuant to the fugitive warrant was unlawful because he was not present in the state of Georgia at the time the alleged offenses were committed and was not the person named in the warrant. The cases were consolidated for hearing.
At the hearing before the Court of Appeals, evidence was introduced of the Governor's demand from the state of Georgia, the warrant from the Governor of Ohio, duly certified copies of the bench warrant, Grand Jury felony indictments from the state of Georgia and a transcript of a September 14, 1981, hearing in the Court of Common Pleas of Lucas County held pursuant to R.C. 2963.09 in which the documents from the state of Georgia and the warrant from the Governor of Ohio were found to be proper. The transcript also revealed that the investigator from the Cobb County, Georgia, Sheriff's Department testified petitioner was the person he had arrested on the felony charges for which extradition was sought. In rebuttal, petitioner offered only his own testimony that he was not the person charged and was not in the state of Georgia on the date the acts charged were committed, but did admit on cross-examination that he was the person identified by the sheriff's investigation.
The cause is now before the court as a matter of right.
Mr. David A. Bradley, pro se. Mr. Anthony G. Pizza, prosecuting attorney, and Mr. George F. Runner, for appellee.
Appellant asserts here only that he is not the person charged and that he was not in the state of Georgia when the alleged offenses occurred.
This court has held in In re Rowe (1981), 67 Ohio St.2d 115, in paragraph three of the syllabus, as follows:
"3. When the invalidity of arrest under the Governor's warrant is asserted by a petitioner in habeas corpus upon the ground that the petitioner was not a fugitive from justice, in that he was not in the demanding state on or about the date of the offense charged, the burden is upon the petitioner to rebut the presumption that petitioner is prima facie in lawful custody by proof beyond a reasonable doubt. If the evidence in the record upon the issue of fugitivity is conflicting and there is present substantial evidence which, if true, tends to prove petitioner was in the demanding state on or about the date of the crime charged, the petitioner has not met the burden placed upon him and is not entitled to be discharged from custody."
Appellant's unsupported testimony is not sufficient to establish beyond a reasonable doubt that he is not the person charged and was not in the state of Georgia at the time of the offenses. Appellant has not met the burden of proof placed on him and was not entitled to be discharged from custody.
The judgment of the Court of Appeals is affirmed.
Judgment affirmed.
CELEBREZZE, C.J., W. BROWN, SWEENEY, LOCHER, HOLMES, C. BROWN and KRUPANSKY, JJ., concur.