Opinion
No. 35833
Decided January 28, 1959.
Extradition — Requisition for, an executive function — Discretionary with Governor — Procedendo — Writ not available to require.
IN PROCEDENDO.
The relator, presently incarcerated in a penal institution in the state of Texas, has filed originally in this court a petition for a writ of procedendo ad judicium, alleging that he stands indicted by the Grand Jury of Stark County for the offense of armed robbery; that a detainer warrant by Ohio authorities has been lodged against relator with the bureau of records of the institution in which he is incarcerated; that it is the policy of the Texas Board of Pardon and Parole that a prisoner who has a detainer warrant filed against him cannot be given clemency or parole or trusty privileges, which earn a prisoner two days for one served; that relator has not been served a copy of such indictment or officially notified of same; that it was the duty of the Stark County authorities to bring relator to trial within two terms of court subsequent to the return of the indictment, which they have not done, or show cause for the delay; that the authorities have not shown or offered a reason for the delay; that relator made formal demand for a speedy trial by applying for a writ of habeas corpus ad prosequendum, or, in the alternative, that the charges be dismissed; that, showing availability for prosecution, relator cited the Uniform Criminal Extradition Act; that the authorities have ignored relator's formal application, thereby depriving him of due process of law by depriving him of a speedy trial; and that relator is entitled to an immediate discharge from the aforesaid charges and to have the detainer warrant recalled.
The prayer is for immediate recall of the detainer warrant and that prosecution under the indictment be denied.
The prosecuting attorney of Stark County has filed a general demurrer to the petition.
Mr. Jim H. Corbett, in propria persona. Mr. Norman J. Putnam, prosecuting attorney, and Mr. Harry N. Kandel, for respondent.
Counsel for the respondent state that the sole question raised at this time is whether Section 2963.05, Revised Code, is a mandatory section.
That section provides in part:
"When it is desired to have returned to this state a person charged in this state with a crime, and such person is imprisoned * * * in another state, the Governor may agree with the executive authority of such other state for the extradition of such person * * *." (Emphasis supplied.)
The matter of issuing an extradition requisition by the Governor of Ohio is an executive function, discretionary with him, and the exercise thereof will not be interfered with by the courts.
The petition fails to disclose a mandatory duty on the part of respondent. The demurrer to the petition is sustained, and a writ of procedendo is denied.
Writ denied.
WEYGANDT, C.J., ZIMMERMAN, STEWART, TAFT, MATTHIAS, BELL and HERBERT, JJ., concur.