Opinion
Page __
__ Cal.App.2d __ 233 P.2d 931 Ex parte DRAKE. Cr. 2274. California Court of Appeals, Third District July 24, 1951.Hearing Granted Aug. 23, 1951.
Subsequent opinion 238 P.2d 566.
George K. Littlefield, Jr., Sacramento, for appellant.
Gail A. Srader, Deputy Atty. Gen., Sacramento, for respondent.
ADAMS, Presiding Justice.
The petition of Roy Drake for a writ of habeas corpus which was filed here on February 2, 1951, alleged the following facts:
On May 20, 1943, petitioner was sentenced to San Quentin from Los Angeles County on his plea of guilty to two charges of first degree robbery. On December 26, 1943, he and thre other inmates escaped from San Quentin. On May 22, 1944, he was sentenced in the state of Mississippi to imprisonment for 100 years for robbery with firearms. In 1947 the Governor of Mississippi wrote to the prison authorities of California asking if they would accept petitioner to complete his term of imprisonment from which he has escaped, and the California authorities replied that they would do so and would forward extradition papers, which was done. Without petitioner's knowledge, the Governor of Mississippi, on October 3, 1947, sent the following communication to the Superintendent of the Mississippi State Penitentiary:
'This is your authorization to release Roy Drake, No. 16626, from the Mississippi State Penitentiary into the custody of the Superintendent of San Quentin Prison, State of California, or his duly authorized and accredited representatives. Said Roy Drake was sentenced to the State Penitentiary from Hinds County for a term of one hundred years on conviction of the crime of robbery with firearms, he having been sentenced on May 22, 1944.
'This release to the California authorities is granted with the distinct understanding that in the event this prisoner is ever [233 P.2d 932] granted executive clemency of any kind in California or is ever released for any reasons from the San Quentin Prison, State of California, he will be held by the California authorities for the State of Mississippi and will be delivered to authorities from the State of Mississippi for return to the Mississippi State Penitentiary, and it is expressly understood that the State of Mississippi will exercise its right to return this prisoner to the State of Mississippi in the event his release is ever contemplated.
'It is the understanding of the Governor that the State of California, through its agents, has stated its willingness to accept this prisoner and that the prisoner is in fact an escapee from the State of California from the prison at San Quentin, California, and that he is wanted for prosecution for this escape and in order that he may continue serving his time in San Quentin Prison, State of California, on previous convictions there.'
It does not appear that petitioner entered into any agreement to return to Mississippi when released by the California authorities, and it is to be noted that the communication of the Mississippi governor was directed only to the Mississippi prison authorities.
Extradition papers from California were honored, and on November 5, 1947, petitioner was returned to the California prison.
Petitioner also alleged that prior to the issuance of the extradition papers by the Governor of California he was, without the advice or aid of counsel, and in the presence of several Mississippi prison guards, ordered to sign the following document if he 'knew what was good for him.' It reads:
'I, Roy Drake MSP #16626, hereby certify that I freely and voluntarily agree to accompany San Quentin Prison authorities as a prisoner from the Mississippi State Penitentiary, Parchman, Mississippi to the San Quentin California Prison Furthermore, I hereby waive all formalities and am willing to return to San Quentin California Prison with the said authorities without the Governor's requisition or other papers necessary in such cases: I exhonorate Authorities, Mississippi State Penitentiary, Parchman, Mississippi from any blame, compulsion or interference in this connection.'
Thereafter, petitioner was tried and convicted in California for his escape from San Quentin, and on June 21, 1950, the Adult Authority fixed petitioner's term on the two robbery charges at seven years each, to run concurrently, and at five years on the escape judgment, making a total maximum of twelve years.
Petitioner further alleged that owing to the 'hold' order from the state of Mississippi he was not eligible to parole and would not be as long as said hold order remained against him; and his prayer was in effect that this court consider the effect of said hold order and adjudge that petitioner was not to be denied parole because of said detainer. We issued the writ, and an 'Answer and Return' was filed which did not deny the allegations of the petition but did demur to them as being insufficient to justify the relief prayed for by petitioner. They are therefore admitted for the purposes of this proceeding. The matter was argued before this court on April 5, 1951, and thereafter petitioner filed herein a certified copy of the minutes of the Adult Authority of June 18, 1951, which recite that petitioner was, on that date, 'Granted parole effective April 14, 1952, to go to family in Indiana subject to hold.'
There are two questions presented to this court for determination. The first is the legal effect of the action of the Governor of Mississippi in releasing petitioner to the California authorities; and the second, whether the relief prayed for by petitioner may be granted in this proceeding.
As to the first question, while the governor of any state may grant extradition of a fugitive from justice, here the Governor of Mississippi took the initiative by asking California if it wanted the petitioner, and, on being advised that the California authorities wanted him, personally authorized the prison authorities to release Drake into the custody of the Superintendent of San Quentin Prison, as hereinbefore set forth; and it was after said release was ordered that extradition proceedings were instituted by this state.
[233 P.2d 933] Mississippi has not adopted the Uniform Criminal Extradition Act, and the provisions thereof are not applicable in this proceeding.
Petitioner was not on parole from Mississippi at the time of his extradition to California. He was actually serving a sentence in a penitentiary.
In 22 Am.Jur. 257, the text reads: '* * * The executive of the asylum state may waive the right of that state to retain the prisoner and may surrender him to the demanding state; but there is some authority to the effect that if the prisoner is in actual custody of the court--that is, either imprisoned or paroled--then the governor has no power to grant a rendition warrant to the demanding state and the fugitive may set up such facts.'
In 35 C.J.S., Extradition, § 21(b), page 350, the text reads: '* * * a person in custody for an offense in one state may be surrendered to another state which requests his extradition. Broadly speaking, such surrender operates as a waiver of the jurisdiction of the state over the person of the prisoner, and it has been held that he cannot thereafter be considered a fugitive from justice from the surrendering state so as to permit it to requisition him on termination of proceedings against him in the second state, and that it has waived its right to secure his return to answer for the offense for which he was originally held in custody.' Citing In re Whittington, 34 Cal.App. 344, 167 P. 404.
In Ex parte Bell, Ohio Com.Pl., 75 N.E.2d 186, 188-190, the court had the following to say about the power of a governor in such cases:
'In Re Opinion of the Justices to the Governor and Council, 201 Mass. 609, 89 N.E. 174, 24 L.R.A., N.S., 799, the court held that the governor has no authority to interfere with the execution of a sentence in a criminal case other than by pardoning the offender.
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"[The governor's] disability so to interfere lies deeper than in the absence of an empowering statute. The powers of the government of Massachusetts are divided among three departments--the legislative, the executive and the judicial--no one of which shall ever exercise the powers of either of the others. * * *
"It is within the province of the judicial department to try persons who are charged with crime and to impose punishment upon them if they are found guilty. Except by a pardon of the convict, neither of the other departments can nullify or set aside a sentence of the judicial department which is in process of execution under a proper warrant from the court.
"A warrant from the Governor, such as is supposed, unless it derives some peculiar power from the Constitution of the United States, would be of no effect against the warrant from the court under which the prisoner is held in execution of its judgment after conviction. * * *
"[The governor's] power * * * is subordinate to the power of his own state, through its proper officers, to hold its prisoners, convicted of crime, until their expiation under its laws has become complete.'
'The general rule is adequately stated in 22 American Jurisprudence page 256, section 19: 'In general under the constitution of the United States and the laws of Congress enacted thereunder, it is the imperative duty of the governor of the asylum state to deliver up a fugitive from justice upon receiving a requisition and papers in proper form from the executive of the demanding state; and, while the obvious purpose of such provision is to prevent an offender against the justice of one state from gaining an asylum and immunity from punishment by fleeing to another state, this does not create a preference in the enforcement of the demanding state. Accordingly, it is well settled that an asylum state has the right to punish an accused fugitive for crimes committed within its jurisdiction before it becomes obligated to honor a requisition for extradition by a sister state.' (Italics the Court's.)
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'The Governor of Ohio cannot transgress the jurisdiction of the judiciary without specific statutory authority, which in this instance he does not have, so that [233 P.2d 934] he cannot compel the extradition of Bell to the demanding state until such a time as Bell's period of probation has expired.'
In People ex rel. Barrett v. Bartley, 1943, 383 Ill. 437, 50 N.E.2d 517, 521, 147 A.L.R. 935, the court said: 'Other cases adopting the principle of law that where a prisoner serving a sentence is extradited as a fugitive from justice and delivered to another State, jurisdiction over his person is forever waived by the asylum State are: In re Whittington, 34 Cal.App. 344, 167 P. 404; State v. Saunders, 288 Mo. 640, 232 S.W. 973; Jones v. Morrow, 154 Kan. 589, 121 P.2d 219. The legal effect and logic of these cases convince us that the waiver of jurisdiction of a State over a fugitive is a prerogative of the Governor, and that his extradition warrant takes priority over all State process by which the fugitive is held; that a prisoner cannot be handed from one jurisdiction to another for the purpose of trial, conviction and service of a new sentence, before being returned to the asylum State for service of the unexpired sentence, without violating his constitutional rights.'
In the later (1949) Illinois case of People ex rel. Milburn v. Nierstheimer, 401 Ill. 465, 82 N.E.2d 438, 439, the court reaffirmed the above holding in the Bartley case.
In the Whittington case, above cited, which was decided prior to the adoption by California of the Uniform Criminal Extradition Act, Pen.Code, § 1548 et seq., the petitioner was arrested in the state of Texas for a crime alleged to have been there committed, and was taken into custody by the peace officers at Fort Worth. While there held in custody a requisition issued by the Governor of California was honored by the Governor of the state of Texas. This requisition upon the Governor of Texas was made upon a showing that petitioner had theretofore committed the crime of murder in the state of California. The police authorities at Fort Worth, upon having presented to them the Governor's warrant of that state when in the hands of the agent of the state of California, relinquished control and custody of the petitioner and he was immediately taken under the warrant mentioned to the state of California to answer to the charge of murder. The latter charge was not pressed to trial in California. It was dismissed or otherwise disposed of; whereupon the Governor of Texas made requisition upon the Governor of California to have petitioner returned to Texas to answer to the same offense for the alleged commission of which he was held under arrest at the time the police authorities of Fort Worth relinquished him into the hands of the state agent to be returned to California. Petitioner had not been released from custody since he was first arrested in the state of Texas for the crime there alleged to have been committed by him. It was his contention that under these facts he could not be considered a fugitive from justice within the meaning of that term as it is included in section 2 of Article IV of the Constitution of the United States. The court said, 34 Cal.App. at page 347, 167 P. at page 405: 'But in this case the prisoner did not leave the state of Texas by any voluntary act of his own. He was taken out of the state against his will and under compulsory process, at a time when the state of Texas had him in custody, with full right and power to prosecute him for the offense for which it now seeks to have him returned. Not only may it be said that he is not a fugitive, because he did not voluntarily leave that state, but because, also, the state of Texas voluntarily reinquished the jurisdiction of its courts over his person and waived its right to thereafter have him brought back from the California jurisdiction to answer for the same offense.'
See, also, Hess v. Grimes, 5 Kan.App. 763, 48 P. 596, 597; Ex parte Guy, 41 Okl.Cr. 1, 269 P. 782; State ex rel. Falconer v. Eberstein, 105 Neb. 833, 182 N.W. 500, 501; People ex rel. Gallagher v. Hagan, 34 Misc. 85, 69 N.Y.S. 475, 477-478; State v. Saunders, 288 Mo. 640, 232 S.W. 973, 975-976; Hansen v. Edwards, 210 Mo.App. 35, 240 S.W. 489.
Regarding the use of detainers, the Handbook of Interstate Crime Control issued by the Interstate Commission on [233 P.2d 935] Crime, in a report of its Joint Committee on Detainers, states:
'A detainer may be defined as a warrant filed against a person already in custody with the purpose of insuring that, after the prisoner has completed his present term, he will be available to the authority which has placed the detainer. Wardens of institutions holding men who have detainers on them invariably recognize these warrants and notify the authorities placing them of the impending release of the prisoner. Such detainers may be placed by various authorities under varying conditions. For example, detainers may arise when an escaped prisoner or a parolee commits a new crime and is imprisoned in another state, or detainers may be placed by various authorities against a man not previously imprisoned who commits a series of crimes in different jurisdictions.
'During the past two decades great progress has been made in penal treatment, by putting into ever-widening practice the ideas that thinking penologists have striven for centuries to realize. We know now that the prison administrator's task is to rehabilitate the offender and to make plans for him to return to the community as a self-respecting, law-abiding citizen. However, this task is difficult to accomplish in many cases because we have allowed the detainer, inherited from medieval thinking, to remain in our law enforcement system without making adjustment necessary to prevent hampering of the modern correctional program.
'While it would seem proper that authorities in quest of a violator of the law should have every assistance in returning him to their jurisdiction, nevertheless the detainer system now operates to the detriment of society all too often. The difficulties inherent in the existing detainer system affect the judges, the institutional officials, the paroling authorities and the individual himself.
'The prison administrator is thwarted in his efforts toward rehabilitation. The inmate who has a detainer against him is filled with anxiety and apprehension and frequently does not respond to a training program. He often must be kept in close custody, which bars him from treatment such as trustyships, moderations of custody and opportunity for transfer to farms and work camps. In many jurisdictions he is not eligible for parole; there is little hope for his release after an optimum period of training and treatment, when he is ready for return to society with an excellent possibility that he will not offend again. Instead, he often becomes embittered with continued institutionalization and the objective of the correctional system is defeated.
'The sentencing judge is likewise often thwarted by the detainer system. The enlightened judge knows that his part is to consider the set of circumstances and the course of criminal action that brought the offender before him, and to determine a suitable sentence for the necessary correctional treatment of the offender. Often, in a short course of criminal action, the offender has committed offenses in several jurisdictions as well as committing federal offenses. The judge is at a loss when faced with detainers already filed, and with the possibility of other detainers. A rather long sentence may be indicated, but the judge hesitates to give such a sentence if the offender is going to serve subsequent sentences, or if he stands to loss the privilege of parole because of a detainer. The incidental first offender may, and sometimes does, serve years in prison because he has violated the law in several jurisdictions, although only a short sentence or probation would accomplish the necessary rehabilitation. It is obvious that proper sentencing, as well as proper correctional treatment, is not possible until the detainer system is modified. Ironically, society, in collecting its debt from the offender under the detainer system, is the real loser. Much money is spent in unnecessary extra periods of correctional treatment, and embittered offenders become recidivists, pyramiding the expense of law enforcement.'
While there are decisions in conflict with the cases herein cited, the somewhat peculiar circumstances of this case, particularly the fact that the Governor of Mississippi took the initiative in effecting [233 P.2d 936] the transfer of Drake to California when he was already serving what amounted to a life sentence in the Mississippi penitentiary, the fact that the Governor of Mississippi authorized the release of Drake to the superintendent of San Quentin prison, the fact that the so-called 'understanding' was contained only in the authorization directed to the superintendent of the Mississippi penitentiary, of which Drake had no knowledge and to which he did not agree, the absence of any showing that such conditions of the release were made known to the California authorities, and the additional fact that Drake did not leave Mississippi voluntarily and is not a fugitive from its justice, lead us to the conclusion that the legal effect of the release is that the surrender of the prisoner operated as a waiver of the jurisdiction of Mississippi over the person of the prisoner, and that the Adult Authority of this state is not bound to give consideration to any 'hold' or detainer request of Mississippi in dealing with Drake's right or eligibility to parole.
While we do not question the right of the Adult Authority to impose reasonable conditions to the paroles which it grants to prisoners under its control, where, as we hold, the governor of the surrendering state has waived its right to require that the prisoner serve out the sentence imposed by its courts, such prisoner's parole should not be 'subject to hold' for that state.
As for the question whether in such a proceeding as this Drake is entitled to the relief which he seeks, since it is the settled custom in this state to consider in such a proceeding the effect of erroneous determinations of trial courts as to whether, by reason of prior convictions, prisoners are or are not habitual criminals--as under our statutes the status of the prisoner in this respect affects his rights to parole--we conclude that the proceeding is available to Drake to secure a determination regarding the effect of an unauthorized hold or detainer which affects his right to parole. In re McVickers, 29 Cal.2d 264, 176 P.2d 40; In re Stewart, 24 Cal.2d 344, 348, 149 P.2d 689; In re Kingsbury, 74 Cal.App.2d 959, 963, 170 P.2d 82; In re Seeley, 29 Cal.2d 294, 176 P.2d 24.
However, petitioner not being now eligible for release, the writ is discharged.
PEEK and VAN DYKE, JJ., concur.