Summary
holding that the appropriate forum to judge present insanity is the demanding state
Summary of this case from Solomon v. KincaidOpinion
No. 26774
Decided December 15, 1937.
Criminal law — Extradition — Governor may issue warrant although lunacy proceedings pending in Probate Court — Habeas corpus — Section 109-10, General Code — Sanity or insanity of fugitive to be determined by demanding state — Habeas corpus proceedings not stayed by lunacy inquest — Writ of procedendo to Common Pleas Court.
1. Lunacy proceedings instituted in the Probate Court against one who is charged with crime in a sister state will not prevent the Governor of this state from issuing his warrant for extradition of a fugitive from justice.
2. The courts of Ohio have no authority in habeas corpus proceedings instituted under Section 109-10, General Code, to consider the question of the present sanity or insanity of an alleged fugitive from justice, but that question must be determined by the law and courts of the demanding state.
3. A judge, upon a hearing in habeas corpus under Section 109-10, General Code, has no authority to continue such proceedings simply because lunacy proceedings are pending in the Probate Court, and a writ of procedendo will issue requiring him to proceed to final judgment, irrespective of the pendency of the lunacy proceedings.
IN PROCEDENDO.
This is an original action in procedendo instituted on the relation of the Governor of the state of Ohio and the agent of the state of Georgia in the matter of the extradition of Heimie Ashkenazie against Marion B. Owen, as acting judge, and Golden C. Davis, judge of the Court of Common Pleas of Clark county, Ohio. The matter is before the court upon a demurrer to the separate answers of Marion B. Owen, as acting judge, and Golden C. Davis, the regularly elected and qualified judge of the Court of Common Pleas of Clark county.
The petition recites that on August 7, 1937, Heimie Ashkenazie was charged by affidavit in the Municipal Court of the city of Macon, Bibb county, Georgia, with the crime of arson alleged to have been committed on June 2, 1937, in that county and state. It is alleged that Heimie Ashkenazie was in Macon, Bibb county, Georgia, at the time of the alleged commission of the offense, but that he is now a fugitive from justice, having fled immediately after the commission of the crime.
Extradition papers were prepared designating Willis Laudor Robertson as agent for the state of Georgia for the purpose of returning the alleged fugitive to that state, and signed by Governor E.D. Rivers on September 2, 1937.
Robertson presented these papers on September 3, 1937, to Governor Martin L. Davey of the state of Ohio, who fixed Tuesday, September 7, 1937, at 2 p. m. as the date for hearing. A request was then made by counsel for Heimie Ashkenazie for a continuance inasmuch as the day set was a religious holiday.
The petition recites that on September 7, 1937, James B. Malone instituted an action in the Probate Court of Clark county seeking to have his client, Heimie Ashkenazie, declared an insane person. It is alleged that the Governor was asked for a further continuance because of the pendency of the action, but he overruled that and, after the hearing on September 8, 1937, on September 9, 1937, honored the request for extradition and rendition of Heimie Ashkenazie to the state of Georgia and ordered that he be delivered to the agent of that state.
The agent of the state of Georgia presented the warrant of the Governor of Ohio to the sheriff of Clark county and requested that the body of Ashkenazie be delivered to him. A writ of habeas corpus on behalf of the alleged fugitive, Heimie Ashkenazie, was issued out in the Court of Common Pleas of Clark county.
On September 10, 1937, Marion B. Owen, who was then acting judge of the Court of Common Pleas of Clark county due to the absence of Judge Golden C. Davis, made an order in which he found "that the warrant of the Governor of Ohio in a purported extradition proceeding instituted by the state of Georgia, was beyond the powers of the said Governor of Ohio so long as there existed in the courts of the state of Ohio a proceeding pending, primary or on appeal, concerning the mental capacity of the said Heimie Ashkenazie, a purported lunatic, and the court further finds that there is pending in the Probate Court of Clark county, Ohio, such a lunacy inquest, and that said warrant of the said Governor of Ohio, upon which the respondent, George W. Benham, as sheriff of said county, was holding and detaining said Heimie Ashkenazie, was premature and without legal authority to said respondent for said detention or delivery of said Heimie Ashkenazie as in said warrant provided; the court further finds that it is unnecessary and improper to inquire into the other issues relating to said extradition so long as said lunacy proceedings, primary or on appeal, exist in the courts of the state of Ohio; and the court continues further hearing in this matter until all such proceedings relating to the lunacy of said Heimie Ashkenazie are finally determined.
"The court further orders that said Heimie Ashkenazie remain in the custody of the respondent under said lunacy proceedings until the further order of this court.
"To all of which findings and orders of the court the respondent, and the state of Georgia, by his and its counsel, except."
The relators state that it is the duty of the Court of Common Pleas of Clark county to inquire into the issues raised and determine whether the alleged fugitive should not be ordered into the hands of the person designated in the warrant of the Governor of the demanding state, and that the lunacy proceedings are no bar to either the issuance of the warrant by the Governor of Ohio or to an inquiry by the court. The relators, therefore, pray for an order directing the acting judge or regularly elected judge to proceed forthwith to render and enter final judgment in the habeas corpus proceedings.
In the answer of Judge Golden C. Davis, he states that he was absent from Clark county on September 9 and 10 and that under an arrangement Marion B. Owen, a judge of the Court of Common Pleas of Ohio, was acting in his stead and that he knows from the records that said Marion B. Owen did preside in said cause and proceeded to hear said cause and gave judgment in said cause as is hereinbefore set out. He states that Judge Owen having heard the habeas corpus proceedings, it would be improper "to interfere or interpose himself in the said proceeding" and prays that the petition be dismissed.
Marion B. Owen in his answer states that he is judge of the Court of Common Pleas of Champaign county, and was the acting judge in the habeas corpus proceedings of Heimie Ashkenazie in Clark county, due to the absence of Judge Golden C. Davis. In his answer he alleges that the prosecuting attorney and assistant attorney general appeared at the hearing on the habeas corpus proceedings and submitted to the jurisdiction of the court without objection, and that evidence and an agreed stipulation of facts was offered. He further says he made the order, the significant portion of which is set out herein. He then alleges: "That this defendant, as judge as aforesaid, has been ready, willing and able to proceed to further hearing of said habeas corpus proceeding when the order and judgment as given by him as judge as aforesaid, has been met, complied with, and the said judgment no longer effective. That this defendant, as judge as aforesaid, has not refused to proceed with the said cause, but has rendered said judgment and decision as based upon the evidence and admitted facts before him. * * * Defendant says that the Probate Court of Clark county, Ohio, has not yet disposed of said lunacy inquest pending in said court" and that the relators have adequate remedies at law for the review of this proceeding.
It is to these answers that separate demurrers were filed by the relators, and it is upon these facts set forth in both the petition and answers that the cause is to be determined.
Mr. Herbert S. Duffy, attorney general, Mr. Will P. Stephenson and Mr. John K. Sawyers, Jr., for relators.
Mr. I.W. Garek and Mr. James B. Malone, for respondents.
The issues presented in the habeas corpus proceedings filed in Clark county on behalf of Heimie Ashkenazie must be determined under the provisions of the Uniform Criminal Extradition Act (Am. H. B. No. 108, 117 Ohio Laws, ___, Sections 109-1 to 109-32, General Code) which became effective August 20, 1937.
Under that enactment it is specifically provided that, subject to its provisions, the provisions of the Constitution of the United States and all acts of Congress enacted in pursuance thereof shall be controlling in matters pertaining to extradition. Section 109-2, General Code.
The principal question involved in this case is whether the institution of lunacy proceedings in the Probate Court against one charged with a crime in a sister state will prevent the Governor of Ohio or a court of record of this state from honoring a demand for the surrender of the alleged fugitive.
The Governor of Ohio issued his warrant on September 9, 1937, directing that the alleged fugitive, Heimie Ashkenazie, be turned over to the agent of the state of Georgia for the purpose of returning him to that state for trial on a charge of arson. The presumption is that the Governor of Ohio, in issuing his warrant, acted in conformity with the provisions of law. Maloney v. Sheriff of Hamilton County, 98 Ohio st., 463, 121 N.E. 646.
When the extradition papers from Georgia were presented to the Governor of Ohio, he had the right at a hearing to determine whether the person demanded is substantially charged with a crime against the laws of the state of Georgia, from whose justice he is alleged to have fled, by an indictment or an affidavit, and whether the person demanded is a fugitive from the state of Georgia. Section 109-3, General Code. Roberts v. Reilly, 116 U.S. 80, 29 L.Ed., 544, 6 S.Ct., 291; Munsey v. Clough, 196 U.S. 364, 49 L.Ed., 515, 25 S.Ct., 282; Appleyard v. Massachusetts, 203 U.S. 222, 51 L.Ed., 161, 27 S. Ct., 122; 81 A. L. R., 552.
Under former statutes, an alleged fugitive could test the sufficiency of the extradition proceedings either in a hearing before the Court of Common Pleas upon the warrant of the Governor or by an application for habeas corpus. Under the present act, it is provided that no person arrested upon a warrant of the Governor shall be delivered to the agent of the demanding state unless he shall first be taken before a judge of a court of record in this state and, "if the prisoner or his counsel shall state that he or they desire to test the legality of his arrest, the judge of such court of record shall fix a reasonable time to be allowed him within which to apply for a writ of habeas corpus." Section 109-10, General Code.
Heimie Ashkenazie, an alleged fugitive, had a right, therefore, to test the sufficiency of the extradition proceedings in habeas corpus before the Court of Common Pleas of Clark county. The statute, however, expressly provides that "the guilt or innocence of the accused as to the crime of which he is charged may not be inquired into by the Governor or in any proceeding after demand for extradition" has been presented. (Italics ours.) Section 109-20, General Code. The Court of Common Pleas in habeas corpus has no greater power to determine the regularity of the extradition proceedings than the Governor. The same issues and questions may be presented to both. Wilson v. Nolze, 34 Ohio St. 520.
Absence from the scene of the crime or an alibi cannot be shown unless it is probative of the fact that the accused is not a fugitive. Benson v. Henkel, 198 U.S. 1, 49 L.Ed., 919, 25 S.Ct., 569. Neither can the claim that the offense is outlawed by the statute of limitations be determined. United States v. Cook, 84 U.S. (17 Wall.), 168, 21 L.Ed., 538; 77 A.L.R., 902. These are matters of defense, and must be determined by the courts of the demanding state. Kentucky v. Dennison, Governor, 65 U.S. (24 How.), 66, 16 L.Ed., 717; Ex parte Reggel, 114 U.S. 642, 29 L.Ed., 250, 5 S.Ct., 1148; In re Moyer, 12 Idaho 250, 85 P. 897, 12 L.R.A. (N.S.), 227.
In a widely discussed case it was held that whether the alleged fugitive was insane at the time of the commission of the offense could not be determined by the laws of the state where he sought asylum, but must be decided by the laws and by the courts of the demanding state where the offense occurred. Drew, Sheriff, v. Thaw, 235 U.S. 432, 59 L. Ed., 302, 35 S.Ct., 137.
No claim is made in this instance that Ashkenazie was insane at the time of the commission of the offense. It is contended that he is now insane, and that until the Probate Court determines such question the Governor of Ohio was without authority to issue a warrant.
The warrant of the Governor was issued after the lunacy proceedings had been commenced, but not until after the extradition papers had been presented by the agent of Georgia to the Governor of Ohio.
Under the provisions of Section 10501-53, General Code, "except as hereinafter provided, the Probate Court shall have jurisdiction * * * to make inquests respecting lunatics, insane persons, idiots and deaf and dumb persons, subject by law to guardianship."
Accompanying the application for a hearing for commitment "information shall also be furnished to the probate judge as to whether or not it will be proper to bring such insane person into court, and as to whether or not * * * his being at large is dangerous to the community." Section 1953, General Code.
In order to commit to an institution, the probate judge must be satisfied that the person is insane, and accompanying the order of commitment must be a certificate of his condition signed by two medical witnesses. Sections 1956, 1957 and 1958, General Code.
If examining physicians report that the person named in the lunacy warrant should not be brought into court, a hearing may be conducted in his absence. Section 1955, General Code. A person may even voluntarily apply and be committed to a state institution for the insane. Sections 1972 and 1973, General Code.
A review of these provisions shows that the proceeding is purely an ex parte one. The prosecuting attorney is not present to object to the proceedings. They are purely civil in their nature and not of an adversary character.
The probate judge has a wide latitude in determining whether one is sane or insane. On the other hand, where a plea is made in this state, under the provisions of Section 13441-1, General Code, that a defendant under indictment is insane at the time of trial, there are well established tests to determine his mental capacity.
It is generally recognized that upon such a trial inquiry should be made whether the person indicted has sufficient mental capacity to recall the events of his life so that he can furnish to his counsel facts which ought to be stated and presented to a jury at his trial for the crime charged. United States v. Chisholm, 149 F., 284; State v. Arnold, 12 Iowa 479; State v. Detar, 125 Kan. 218, 263 P. 1071; State v. Seminary, 165 La. 67, 115 So. 370; Freeman v. People, 4 Denio (N.Y.), 9; Commonwealth v. Scovern, 292 Pa. 26, 140 A. 611; Jordan v. State, 124 Tenn. 81, 135 S.W. 327, 34 L.R.A. (N.S.), 1115; 3 A. L. R., 94.
It is evident that one could be found insane in the Probate Court, and yet be declared sane by a court or jury in proceedings under Section 13441-1, General Code. As was well said by Judge Okey in Wheeler v. State, 34 Ohio St. 394, 397, 32 Am. Rep., 372: "A person who is a fit subject for confinement in an insane asylum does not necessarily have immunity from punishment for crime."
Under former statutes this court held that when a person was charged with crime his sanity must be determined under the provisions of the criminal code, and that such statutes were peremptory and exclusive. State v. Roselot, 69 Ohio St. 91, 68 N.E. 825; State v. Hollenbacher, 101 Ohio St. 478, 129 N.E. 702.
While the content of some statutes has been changed, it is still the law of this state that the mental capacity of one under indictment must be determined under the provisions of Section 13441-1, General Code, and not by the probate judge.
Consequently, if Ashkenazie were indicted in this state, his mental capacity would be determined in the Court of Common Pleas and not the Probate Court. Does the fact that he is charged in Georgia rather than in Ohio give the Probate Court any greater jurisdiction?
Where, after an adjudication of insanity and commitment to an asylum in a civil proceeding, a person so adjudged commits a criminal act, a court having jurisdiction of the offense may take him into custody and try him for such offense in the absence of a statutory provision to the contrary. Myers v. Halligan, 244 F., 420; Whitney v. Zerbst, Warden, 62 F.2d 970; People v. Gilberg, 197 Cal. 306, 240 P. 1000; State, ex rel. Deeb, v. Fabisinski, 111 Fla. 454, 152 So. 207; Quattlebaum v. State, 119 Ga. 433, 46 S.E. 677; In re McWilliams, 254 Mo., 512, 164 S.W. 221.
Upon a review of these cases, it is evident that a determination of the sanity of Ashkenazie by the Probate Court would not in any manner prevent his extradition for a crime. Not only would such action by the Probate Court be ineffective, but neither the Governor nor court hearing an application for a writ of habeas corpus is authorized to hear evidence of present insanity of one alleged to be a fugitive.
In a case involving extradition under a treaty with Italy, the Supreme Court of the United States, in Charlton v. Kelly, Sheriff, 229 U.S. 447, 57 L.Ed., 1274, 33 S. Ct., 945, held that the question of present insanity must be determined under the law of the demanding state. The statement made by Mr. Justice Lurton at page 462 seems decisive: "We therefore conclude that the examining magistrate did not exceed his authority in excluding evidence of insanity. If the evidence was only for the purpose of showing present insanity by reason of which the accused was not capable of defending the charge of crime, it is an objection which should be taken before or at the time of his trial for the crime, and heard by the court having jurisdiction of the crime." (Italics ours.)
Therefore, the courts of Ohio do not possess the power to inquire into the present sanity of Ashkenazie, but that is to be determined under the laws of the state of Georgia where opportunity to present that question is provided by a special plea and tried by a special jury. Title 27, Sections 1502, 1503 and 1504, Code of Georgia (1936); Cobb 840, Act 1857, page 126.
The filing of the lunacy warrant in the Probate Court had no effect on the jurisdiction of either the Governor or the Court of Common Pleas of Clark county.
An examination of the answer discloses that Judge Marion B. Owen has expressed a willingness to proceed if he has jurisdiction, while Judge Golden C. Davis has stated that he did not desire to "interfere or interpose himself" in the proceeding. Therefore, if a writ is to be issued, it should be directed against Judge Marion B. Owen. Judge Owen did not make a final order. He stayed proceedings in the habeas corpus action only so long as the lunacy proceedings were pending before the Probate Court and "until further order of court."
This court having determined that the lunacy proceedings should be disregarded, it is now the duty of Judge Owen to proceed, hear and render final judgment in the habeas corpus action.
The writ of procedendo is merely an order from a court of superior jurisdiction to one of inferior jurisdiction to proceed to judgment. It does not in any case attempt to control the inferior court as to what that judgment should be. However, such inquiry is limited to a determination of those questions proper to be presented in extradition proceedings and set forth in Section 109-3, General Code.
For the reasons stated, the demurrers to the answers will be sustained and the writ of procedendo will be issued directing Judge Marion B. Owen to proceed to final hearing in the habeas corpus proceedings instituted on behalf of Heimie Ashkenazie.
Writ allowed.
WEYGANDT, C.J., MATTHIAS, DAY, ZIMMERMAN, WILLIAMS and MYERS, JJ., concur.