Summary
In Gatewood v. Culbreath, Fla. 1950, 47 So.2d 725, the Supreme Court of Florida held that an offense which under the laws of a demanding state is a misdemeanor constitutes a crime for which extradition can be had, citing Ex parte Kentucky v. Dennison, 65 U.S. 66, 24 How. 66, 16 L.Ed. 717.
Summary of this case from State ex Rel. Cocchiaro v. PurdyOpinion
July 21, 1950. Rehearing Denied September 18, 1950.
Appeal from the Circuit Court, Hillsborough County, Henry C. Tillman, J.
Henson Berry and Burton G. Henson all of Tampa, for appellant.
Richard W. Ervin, Atty. Gen., George M. Powell and Frank S. Cannova, Asst. Attys. Gen., for appellee.
The record in this case discloses that the appellant, Thomas Edward Gatewood, was arrested or taken into custody by the Sheriff of Hillsborough County, Florida, under a warrant of extradition charging that he was a fugitive from justice. The extradition warrant was issued by the Honorable Fuller Warren, Governor of the State of Florida, upon the request or demand of Honorable William M. Tuck, Governor of the State of Virginia. The State of Virginia charged Gatewood with the crime of desertion and nonsupport of his wife, Mary Elizabeth Gatewood, in the City of Richmond and the State of Virginia. Her affidavit is to the effect that he failed to support her on about October 1, 1949, and deserted her in the State of Virginia on October 20, 1949, and went to the State of Florida.
The appellant-petitioner applied for and obtained a writ of habeas corpus in the Circuit Court of Hillsborough County, Florida. A return, as made by the Sheriff, disclosed that the petitioner was arrested on the charge that he was a "fugitive from justice" on a warrant issuing out of a Justice of the Peace Court of Hillsborough County, Florida. The petitioner was released from custody on January 13, 1950, "for the lack of extradition proceedings". He was rearrested on January 23, 1950, on the extradition warrant and a hearing had before the Honorable H.C. Tillman, Circuit Judge, who entered an order quashing the writ of habeas corpus previously entered and remanded the petition to the custody of the Sheriff. The petitioner appealed.
One of the questions posed by appellant for adjudication is whether or not the offense of "desertion and non support", considered a misdemeanor under the laws of the State of Virginia, is an extraditable crime under the Constitution and laws of the United States. The answer to this question is found in the language employed by the United States Supreme Court in the case of Ex parte Kentucky v. Dennison, 24 How. 66, 16 L.Ed. 717, viz.:
"This brings us to the examination of the clause of the Constitution which has given rise to this controversy. It is in the following words:
"`A person charged in any state with treason, felony or other crime, who shall flee from justice, and he be found in another state, shall, on demand of the executive authority of the state from which he fled, be delivered up, to be removed to the state having jurisdiction of the crime'. [U.S. Const. art. 4, § 2.]
"Looking to the language of the clause, it is difficult to comprehend how any doubt could have arisen as to its meaning and construction. The words, `treason, felony or other crime', in their plain and obvious import, as well as in their legal and technical sense, embrace every act forbidden and made punishable by a law of the state. The word `crime' of itself includes every offense, from the highest to the lowest in the grade of offenses, and includes what are called `misdemeanors', as well as treason and felony."
See Ex parte Reggel, 114 U.S. 642, 5 S.Ct. 1148, 29 L.Ed. 250; Schick v. United States, 195 U.S. 65, 24 S.Ct. 826, 49 L.Ed. 99, 1 Ann.Cas. 585; 35 C.J.S. Extradition, § 7, p. 322; 22 Am. Jur. 270, par. 30; 11 R.C.L. 739, par. 33.
The affidavit charging appellant with "desertion and non support" was drafted under 1936 of the Code of Virginia, viz.: Section 1936 of the Code of Virginia. "Desertion of wife or children in destitute circumstances; penalty. — Any husband who shall, without just cause, desert or willfully neglect or refuse or fail to provide for the support and maintenance of his wife, and any parent who shall desert or willfully neglect or refuse or fail to provide for the support and maintenance of his or her male child under the age of sixteen years, female child under the age of seventeen years, or child of either sex of whatever age who is crippled or otherwise incapacitated for earning a living (such wife, child, or children, being then and there in destitute or necessitous circumstances), shall be guilty of a misdemeanor, and on conviction thereof, shall be punished by a fine of not exceeding five hundred dollars, or in the case of a husband or father, be sentenced to the State convict road force at hard labor for a period of not less than ninety days or more than twelve months, or both; * * *"
Pertinent parts of the charging affidavit are viz.:
"On this 7th day of November, 1949, personally appeared before me, John W. Chalkley, a Justice of the Peace for the City and State aforesaid, Mary Elizabeth Gatewood, and after being duly sworn, stated as follows:
"That she is a resident of the City of Richmond, State of Virginia; that she is a lawful age; that she was married to Thomas Edward Gatewood on the 18th day of October, 1940, in the City of Petersburg, State of Virginia; that said Thomas Edward Gatewood was in the said City of Richmond, State of Virginia, and deserted me on October 20, 1949, and has sent no support of any kind since on or about October 1, 1949, leaving said wife in destitute and necessitous circumstances, and a subject of public charity; that I took the matter up with the Juvenile and Domestic Relations Court of the said City of Richmond, State of Virginia, and after an investigation a warrant was issued for said Thomas Edward Gatewood charged with wilful desertion and fail to provide for his wife, leaving her in destitute and necessitous circumstances; that the said warrant was placed in the hands of the Police Department of the said City of Richmond, State of Virginia, for the arrest of said Thomas Edward Gatewood; that I am now in receipt of information that the said Thomas Edward Gatewood has been arrested in the City of Tampa, State of Florida, as a fugitive from justice from the said City of Richmond, State of Virginia, charging desertion and non-support of his wife, and that the said Thomas Edward Gatewood is now a fugitive from justice from the said City of Richmond, State of Virginia; * * *." (Emphasis supplied.)
It is contended that the affidavit charging "desertion and non-support", drafted under Section 1936, supra, and Section 1937c of the 1948, Cumulative Supplement to the 1942 Code of Virginia, is legally insufficient as a basis for extradition. Section 941.03, F.S.A., provides that the Governor of Florida shall not recognize a demand for extradition unless the demand is in writing and alleged "that the accused was present in the demanding state at the time of the commission of the alleged crime, and that thereafter he fled from the state * * *. The indictment, information, or affidavit made before the magistrate must substantially charge the person demanded with having committed a crime under the law of [the demanding] state * * *."
Section 941.06, F.S.A., provides: "Extradition of persons not present in demanding state at time of commission of crime. — 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 in the manner provided in § 941.03 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 chapter not otherwise inconsistent, shall apply to such cases, even though the accused was not in that state at the time of the commission of the crime, and has not fled therefrom."
Pertinent parts of the affidavit of Mary Elizabeth Gatewood are to the effect that she was a resident of the State of Virginia and was married to the appellant, Thomas Edward Gatewood on October 18, 1940; that the said Thomas Edward Gatewood was in the City of Richmond, State of Virginia, and deserted affiant on the 20th day of October, 1949, and has sent no support of any kind since about October 1, 1949; that she was informed that Thomas Edward Gatewood was arrested in the City of Tampa and State of Florida as a fugitive from justice from the City of Richmond, State of Virginia, and is now a fugitive from justice from the City of Richmond, State of Virginia. Thus it appears that the appellant was in the State of Virginia on October 20, 1949, and failed to support his wife on or about October 1, 1949, in the State of Virginia. We find in the record a substantial compliance with the above statutes.
Appellant's third question is viz.: Can a citizen not charged with crime who peaceably leaves his Virginia home and comes immediately and directly to Florida subsequent to his wife leaving the same home by legal fiction be considered as "being present in the demanding State at the time of the commission of the offense of wife desertion and non-support," "and thereafter he fled from the demanding State" under Sec. 941.03, Florida Statutes 1941; or must he be charged under Sec. 941.06 "with committing an act in this state, intentionally resulting in a crime" of desertion and non-support in the State whose executive authority is making the demand?"
It is contended under this assignment that the appellant, when arrested by the Sheriff of Hillsborough County, was not a "fugitive from justice" within the meaning of the Constitution and applicable Federal and State statutes. The answer to the contention is found in the language of Sections 941.03 and 941.06, F.S.A. See Chase v. State, 93 Fla. 963, 113 So. 103, 54 A.L.R. 271.
We fail to find error in the record.
Affirmed.
TERRELL, Acting Chief Justice, and SEBRING and HOBSON, JJ., concur.