Summary
In McCurley there was evidence that some of the checks were delivered in person, meaning the person was actually in the foreign state; in this case the checks were mailed.
Summary of this case from Sonkin v. StateOpinion
No. 91-KA-0125.
November 18, 1993.
Appeal from the Circuit Court, Wilkinson County, Richard T. Watson, J.
Reversed and rendered.
McRae, J., dissented and filed opinion in which Dan M. Lee, P.J., and Sullivan, J., joined.
Michael C. Moore, Atty. Gen., Mary Margaret Bowers, Ellen Y. Dale, Sp. Asst. Attys. Gen., Jackson, for appellant.
L. Jackson Lazarus, David C. Bramlette, III, Adams Foreman Truly Smith Bramlette, Natchez, for appellee.
EN BANC.
This case is one of first impression involving the interpretation of extradition proceedings found in Miss. Code Ann. § 7-1-25 (1972, as amended). The Circuit Court of Wilkinson County, Mississippi, granted the Writ of Habeas Corpus filed by Jennings and Cathy McCurley. The petitioners sought relief from the proceedings initiated by the State of Louisiana for the extradition of Jennings and Cathy McCurley based upon charges of issuing worthless checks in the State of Louisiana. Aggrieved by the lower court's holding, the State of Mississippi has appealed to this Court. After considering the excellent briefs submitted by both parties as well as the applicable law, we find that the lower court was in error in not extraditing Jennings and Cathy McCurley to Louisiana so that they may face charges of issuing worthless checks. The proper forum to hear these charges lies in Louisiana and not Mississippi. We therefore reverse and render the lower court's decision.
I.
Jennings and Catherine McCurley owned Sports Unlimited, a convenience store in Woodville, Mississippi. Since Woodville is near the Mississippi/Louisiana state line, it is not uncommon for a business to have dealings in both states. Sometime in 1983 or 1984, a representative from Wilcox Oil Company, a petroleum products distributor from nearby St. Francisville, Louisiana, approached the owner of the building housing Sports Unlimited about selling Wilcox Oil's petroleum products. Following the owner's agreement, Wilcox Oil installed underground oil tanks and pumps on the premises. The installed fixtures remained the property of Wilcox Oil and the McCurleys acted as commission agents for the oil company. On every Monday, a Wilcox Oil representative would deliver gasoline to Sports Unlimited, and the McCurleys would in turn write a check to Wilcox Oil for the amount of the gasoline sold the previous week. Wilcox Oil would figure out the McCurleys' sales commission and remit a check to them shortly thereafter.
This course of dealing continued without problems until January of 1988, when Sports Unlimited began to encounter financial difficulties. The McCurleys' weekly checks to Wilcox Oil began to be returned by Wilcox Oil's bank in Louisiana for insufficient funds. Each time this happened, Wilcox would run the checks through another time in the hopes that the necessary funds would be available. However, the checks were often dishonored a second time, requiring that the McCurleys issue new checks. Things became so bad that Wilcox Oil began sending a representative out to Sports Unlimited on a daily basis in order to collect the receipts from the previous day. Usually Wilcox Oil would receive a check from the McCurleys when they delivered more gasoline. However, on September 6, 1988, the McCurleys' oldest daughter drove to the company's headquarters in St. Francisville with several checks to cover dishonored ones. It was several of these checks that led to Wilcox Oil's filing of criminal affidavits against the McCurleys.
After receiving fifty-eight returned checks, the McCurleys' debt to Wilcox Oil totaled $42,000.00. The McCurleys were able to pay $5,000.00 towards the balance, but $38,847.67 of the debt still remained. In an attempt to secure its financial position, Wilcox asked that the McCurleys sign a promissory note for the amount of the outstanding debt. The McCurleys executed the promissory note, gave Wilcox Oil a second lien on its inventory and accounts receivable, gave Wilcox Oil a third mortgage on their home, and assigned its lease to them. The promissory note was reduced by the McCurleys' endorsement of their commission check back to Wilcox Oil. When the McCurleys closed the doors of their business, $17,000 had been paid on the promissory note. The McCurleys filed bankruptcy soon thereafter. Because Wilcox Oil stood behind the first lienholder with regard to Sports Unlimited's accounts receivable and inventory, the company received nothing in the form of additional payment.
Rather than attempting to collect on the promissory note, Clifford Wilcox turned six returned checks over to the West Feliciana Parish Assistant District Attorney in order to institute criminal proceedings against the McCurleys. Wilcox signed affidavits charging both Jennings and Catherine McCurley with issuance of worthless checks in violation of 14:71 of the Louisiana Code R.S. and listed the amounts of each worthless check on the affidavit. The Assistant District Attorney then prepared and submitted documents requesting the McCurleys' extradition to then-Governor Buddy Roemer of Louisiana for his signature. These documents were sent to then-Governor Ray Mabus of Mississippi.
An extradition hearing was held by then-Governor Mabus, where it was determined that the extradition documents were improper on their face. Apparently the affidavits filed by Clifford Wilcox stated that the crime occurred in Louisiana, while the warrant and request for extradition documents stated that the crime had occurred in Mississippi. New documents were drafted and filed with then-Governor Mabus, who ordered that the McCurleys be arrested. After being taken into custody, the McCurleys filed a Writ of Habeas Corpus, challenging the validity of their detention. Circuit Court Judge Richard Watson granted the McCurleys' petition, thereby releasing them from custody. From this decision, the State of Mississippi appeals on the following grounds:
I. THE TRIAL COURT COMMITTED ERROR WHEN IT IMPROPERLY TRAVERSED THE BOUNDS OF THE HEARING ON WRIT OF HABEAS CORPUS BROUGHT RELATIVE TO THE EXTRADITION OF JENNINGS AND CATHY MCCURLEY UPON RULING THAT NO CRIME HAD BEEN COMMITTED IN EITHER MISSISSIPPI OR LOUISIANA.
II. THE TRIAL COURT COMMITTED ERROR IN ITS FINDINGS THAT THE LEGAL DOCUMENTS IN THIS MATTER WERE IMPROPER ON THEIR FACE.
III. THE TRIAL COURT COMMITTED ERROR IN CONSIDERING THE ISSUE OF FUGITIVITY, THEREBY IGNORING THE APPLICATION TO THIS CASE OF § 7-1-25(2), WHICH MAKES THE ISSUE OF FUGITIVITY IRRELEVANT.
Lower court's findings.
At the habeas corpus proceedings, the trial judge found that the court was bound by Allen v. State, 515 So.2d 890 (Miss. 1987). Judge Watson found the request for extradition documents to be improper on its face because Wilcox's affidavit was in conflict with the extradition documents filed by the Governor of Louisiana. The judge further found that no crime existed in either Mississippi or Louisiana because the parties executed a promissory note and security agreements to replace the worthless checks. Although the judge found the petitioners to be the persons named in the request for extradition documents, he determined them not to be fugitives since they were not in the State of Louisiana at the time of the alleged crimes.
II.
Did the lower court err in granting the McCurleys' Writ of Habeas Corpus?
Interstate extradition of fugitives is a matter of federal law, originating in article IV, § 2 of the United States Constitution, which states:
A person charged in any State with Treason, Felony, or other Crime, who shall flee from Justice, and 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.
Federal extradition law was later codified in 18 U.S.C.A. § 3182 (1969), stating:
Whenever the executive authority of any State or Territory demands any person as a fugitive from justice, of the executive authority of any State, District or Territory to which such person has fled, and produces a copy of an indictment found or an affidavit made before a magistrate of any State or Territory, charging the person demanded with having committed treason, felony, or other crime, certified as authentic by the governor or chief magistrate of the State or Territory from whence the person so charged has fled, the executive authority of the State, District or Territory to which such person has fled shall cause him to be arrested and secured, and notify the executive authority making such demand, or the agent of such authority appointed to receive the fugitive, and shall cause the fugitive to be delivered to such agent when he shall appear. If no such agent appears within thirty days from the time of arrest, the prisoner may be discharged.
Individual states have been granted the right to enact their own extradition laws as long as these laws in no way impair federal extradition law. Many states have exercised this legislative right and have passed individual extradition laws. Other states have adopted the Uniform Criminal Extradition Act. To date, Mississippi has not adopted the Uniform Criminal Extradition Act, but has enacted individual extradition statutes. See Miss. Code Ann. § 7-1-25 (1972, as amended). In Loper v. Dees, 210 Miss. 402, 49 So.2d 718 (1951), this Court held that Mississippi statutes relating to habeas corpus and interstate extradition are not applicable except to the extent that they may be in aid of and not inconsistent with the Constitution and laws of the United States on the question. Id., 210 Miss. at 410, 49 So.2d at 720; see also Bishop v. Jones, 207 Miss. 423, 439, 42 So.2d 421, 422 (1949).
This appeal involves the interpretation of a subsection of Miss. Code Ann. § 7-1-25, which states:
(1) It shall be the duty of the governor, on demand made by the executive authority of any other state, territory or district for any person charged, on affidavit or indictment in such other state, territory or district, with a criminal offense and who shall have fled from justice and be found in this state, the demand being accompanied with a copy of the affidavit or indictment certified as authentic by such executive authority, to cause the offender to be arrested and delivered up to the authority of such state, territory or district for removal to the jurisdiction having cognizance of the offense, upon payment of the costs and expenses consequent on arrest; and it shall be the duty of the governor to demand and receive fugitives from justice for offenses committed in this state.
(2) The governor may also surrender, on demand of the executive authority of any other state, any person to be found in this state who stands charged in the manner provided in subsection (1) of this section 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.
Miss. Code Ann. § 7-1-25 (1972, as amended) (Emphasis added).
Subsection (1) clearly mandates that upon the filing of proper extradition documents with the governor of this state, the fugitive offender should be arrested and turned over to the demanding state. This subsection is applicable to situations where the criminal act was committed in the demanding state and the offender has fled to Mississippi. Conversely, the statute allows the governor of this State to demand and receive fugitives who have committed offenses in Mississippi but have fled this State.
Subsection (2) is the area of dispute requiring interpretation. Although the wording in subsection (2) is permissive in nature, it addresses situations where an act is committed in either Mississippi or in a third state, which intentionally results in a crime in the demanding State. This language applies to persons who are "non-fugitives," i.e., not present in the demanding state when the intentional act was performed, but when the effects or results of that person's acts constitute a crime in the demanding state. This section recognizes the theory of "constructive presence," wherein a person can commit a crime in a demanding state without actually being physically present in that state.
In the present case, the McCurleys issued Wilcox Oil checks representing the proceeds of gas sales at their convenience store. In almost every instance, the checks were picked up at the McCurleys' store on Monday mornings when the supply of gasoline for that week was delivered. Both parties agree that neither Jennings or Catherine McCurley ever delivered a check to Wilcox Oil in St. Francisville, Louisiana. However, evidence was presented at the habeas corpus hearing which showed that on September 6, 1988, the McCurleys' oldest daughter drove to Wilcox Oil's office for the purpose of delivering four new checks to replace the ones that were previously denied twice when deposited in Wilcox Oil's account in St. Francisville. Apparently, this was the only occasion in which either Wilcox or one of his representatives did not receive a check from the McCurleys in Mississippi.
The McCurleys argue that they were not present in Louisiana at the time of the alleged crime and therefore cannot be classified as fugitives under Mississippi case law. They further contend that § 7-1-25(2) is not applicable to the present case because the issuance of worthless checks was not an intentional act as required by § 7-1-25(2). The McCurleys claimed that they often told Wilcox at the time they gave him checks that there was a possibility that sufficient funds were not in the account to cover the checks. It was understood that if the check did not clear the first time, Wilcox was to run it through his bank a second time. In the event that the check still did not clear, the McCurleys would issue a new one to Wilcox.
Assuming, arguendo, and accepting the McCurleys' claim that the statute requires an intentional act which results in a crime in the demanding state, the evidence clearly shows that Jennings McCurley was aware that the check he issued might not clear when Wilcox deposited it in the company's account in St. Francisville. In fact, he told Clifford Wilcox to run it through the bank a second time if it did not clear the first time. Although McCurley did not want the check to bounce, he intentionally gave it to Wilcox and was at times aware that funds were unavailable to cover the check.
Much of the McCurleys' argument against extradition rests on their claim that no crime was committed in either Mississippi or Louisiana. The McCurleys assert that their execution of the promissory note and additional security agreements constituted a novation, thereby replacing the dishonored checks. The judge at the habeas corpus hearing followed this same reasoning. However, it appears that both the trial judge and the McCurleys missed the point of extradition proceedings. In California v. Superior Court of California, 482 U.S. 400, 107 S.Ct. 2433, 96 L.Ed.2d 332 (1987), the United States Supreme Court defined extradition as a summary procedure, stating:
The language, history, and subsequent construction of the Extradition Act make clear that Congress intended extradition to be a summary procedure. As we have repeatedly held, extradition proceedings are "to be kept within narrow bounds"; they are "emphatically" not the appropriate time or place for entertaining defenses or determining the guilt or innocence of the charged party.
482 U.S. at 406, 107 S.Ct. at 2438, 96 L.Ed.2d at 340.
In terms of Mississippi case law, extradition is not intended as a preliminary inquiry into the merits of a criminal prosecution. Instead, it is a summary executive proceeding by which a criminal accused can be brought before the appropriate tribunal for adjudication. Garrison v. Smith, 413 F. Supp. 747, 752 (N.D.Miss. 1976). It is a well established rule that it is not for courts in the asylum state to inquire into the constitutionality of a sister state's criminal justice system. Id. at 753. Therefore, it has been widely held in both state and federal courts that courts in the asylum state are not to question whether the warrant for a fugitive's arrest is supported by probable cause. Id. The rationale behind this reasoning is that the constitutional rights of the accused are guaranteed and safeguarded by the state and federal courts of the demanding jurisdiction. Id. at 754.
The McCurleys may in fact be correct in their assertion that a novation replaced the dishonored checks and therefore negated any crime. However, this question is not one for Mississippi courts to decide. The proper forum to make such resolution is a court in the demanding state rather than a court in the asylum state. Taylor v. Garrison, 329 So.2d 506, 511 (Miss. 1976). The McCurleys would be able to assert all relevant defenses in Louisiana. Although Mississippi has an important state interest in protecting its citizens from unjust removal from its borders, we must not forget the state's duty under federal extradition law. Due process as we know it in Mississippi also exists in Louisiana. Therefore the McCurleys' defense of novation can certainly be raised there.
In conducting extradition proceedings in this state, a trial court has a limited scope of review. A court considering habeas relief is allowed to review:
(A) Whether the extradition documents on their face are in order;
(B) Whether the petitioner has been charged with a crime in the demanding state;
(C) Whether the petitioner is the person named in the request for extradition; and
(D) Whether the petitioner is a fugitive.
Allen, 515 So.2d at 891 (quoting Michigan v. Doran, 439 U.S. 282, 288, 99 S.Ct. 530, 535, 58 L.Ed.2d 521, 527 (1978).
The McCurleys also argue that Mississippi courts have the power to look behind the extradition documents filed by the State of Louisiana in order to determine the sufficiency of probable cause. Although a minority position in other jurisdictions, there is a growing trend requiring an affirmative showing of probable cause for arrest by the demanding state before extradition may be accomplished. Garrison v. Smith, 413 F. Supp. 747, 754 (N.D.Miss. 1976). However, the Garrison Court clearly rejected this minority position, stating:
[w]e cannot accept the interpretation that an extradition request based on an accusatory affidavit, along with an arrest warrant issued by a judicial officer, cannot be honored under § 3182 unless charging documents set out facts which support an independent finding of probable cause satisfactory to asylum state courts.
Id., 413 F. Supp. at 756. When the charge accompanying the requisition is in the form of an affidavit, several jurisdictions have required a showing that it be supported by Fourth Amendment standards of probable cause. Taylor, 329 So.2d at 510.
In Corkern v. State, 269 So.2d 630 (Miss. 1972), this Court stated in dicta that a habeas corpus court may examine the evidence presented to the magistrate issuing the warrant concerning the presence of probable cause. The argument in Corkern related to the form and content of the document rather than to the actual facts of the case. No issue of probable cause as to the evidence presented before the magistrate was decided in the Corkern case. Therefore, any dicta stated in Corkern is not controlling in the case at bar. Further, in McEwen v. State, 224 So.2d 206 (Miss. 1969), this Court held that a mere telegram from the demanding state, as opposed to an affidavit in this case, would give reasonable enough grounds to cause the alleged offenders to be arrested. Id. at 207.
Finally, the lower court erred when it held that Wilcox initiated criminal proceedings in order to collect a civil debt. Assuming, arguendo, that this is true, Mississippi courts are not the proper forum for the McCurleys to be raising their defenses. Rather, the Mississippi court's inquiry should focus on summary procedure of extradition, not on the merits or legal sufficiencies of the demanding state's claims. Taylor, 329 So.2d at 511.
III.
Were the documents improper on their faces?
The general rule regarding extradition in this state is that when a governor from a demanding state requisitions extradition and certifies that the respondent committed the crime while in the demanding state, and that the duly authenticated accusatory document is genuine and states a crime under the laws of that state, such facts authorize the arrest and extradition of the defendant. Taylor, 329 So.2d at 510. The introduction of the Governor's extradition warrant creates a presumption that all the requirements for extradition have been met. Allen, 515 So.2d at 891; Crumpton v. Owen, 376 So.2d 641 (Miss. 1979). Once this prima facie showing has been made, it is the appellant's burden to prove he is not the person wanted or was not in the demanding state at the time of the crime. Allen, 515 So.2d at 892.
In Walden v. Mosley, 312 F. Supp. 855 (N.D.Miss. 1970), the district court held:
Ex parte affidavits may be, and customarily are, used in extradition proceedings. They make a prima facie case of the truth of their contents, or as stated by some cases, create a presumption that the crime charged was committed and that the person charged therein committed it, and can be rebutted only by clear and convincing evidence. [citations omitted]
This Court stated in McEwen that "it would ill behoove us in the face of the certificate of the Governor of Indiana and the actions of the prosecuting attorney to say that the affidavit was insufficient under the laws of Indiana to state a crime or to authorize extradition." 224 So.2d at 208. Likewise in Corkern, this Court held that a bill of information is "sufficient to order an interstate extradition of a fugitive when a bill of information is recognized by the demanding state as being sufficient to charge the fugitive with the crime therein set forth." 269 So.2d at 632. (Emphasis added).
In Johnson v. Ledbetter, 348 So.2d 1007 (Miss. 1977), this Court found that the testimony of the petitioners, standing alone, was not sufficient to rebut the prima facie case that they were in the demanding state at the time the crime was committed. Id. at 1010. The reasoning behind this determination was that any person demanded by a state could defeat extradition by merely denying that he was in the demanding state at the time the crime was committed. Id.
In the present case, the trial court ruled that the extradition documents filed by the Governor of Louisiana were improper on their face because the affidavits alleged that a crime had been committed in Louisiana while the warrant and request for extradition stated that the crime was committed in Mississippi. However, the affidavits did not contain information about the location of the McCurleys at the time the alleged crime was committed. The pertinent language of the affidavits is as follows:
Personally came and appeared before me, Clifford Wilcox, Jr. For Wilcox Oil who, having been by me duly sworn, did depose and say: That one Jennings F. McCurley, willfully and unlawfully Violated RS 14:71 in that he issued worthless checks — 3 counts — on September 6, 1988 payable to Wilcox Oil in the amount of $5133.23, $5713.49, and $6186.32 totaling $17,233.04 within this State and Parish, and the Jurisdiction of the Twentieth Judicial District Court, contrary to the form of the statutes of the State of Louisiana in such case made and provided, and against the peace and dignity of the same.
The affidavit charging Catherine McCurley with the same crime contains the exact language as the one above except that her name was substituted for that of her husband. The charge against the McCurleys does not state that the crime took place within the borders of Louisiana, but that the Louisiana statute was violated. Any discrepancies or flaws in the extradition documents were corrected as a result of initial extradition hearing in which the Governor of Mississippi found the documents to be improper on their face. The State of Louisiana submitted corrected documents which the Governor of Mississippi signed, authorizing the arrest and extradition of the McCurleys.
The foregoing case law indicates that the charging instrument in the present case sufficiently charges a crime as well as being technically sufficient in form. The attached affidavits merely state that a crime was committed in Louisiana and nothing more. Finally, the affidavits were sworn before a neutral Louisiana judge who signed warrants for the McCurleys' arrest after a showing of probable cause.
IV.
Are the McCurleys fugitives?
A fugitive for extradition purposes has been defined as one who has committed a crime in the demanding state while physically present in that state and who has since fled that state. Allen, 515 So.2d at 891; Crumpton, 376 So.2d at 642. However, one is not a fugitive if he establishes beyond a reasonable doubt that he was without the border of the demanding state at the time of the admission of the crime. Allen, 515 So.2d at 891; Crumpton, 376 So.2d at 642-43; Johnson, 348 So.2d at 1010. Clearly the question of fugitivity is within the scope of inquiry of the habeas corpus court. Taylor, 329 So.2d at 511; Bishop v. Jones, 207 Miss. 423, 42 So.2d 421 (1949).
In Cassis v. Fair, 126 W. Va. 557, 29 S.E.2d 245 (1944), the West Virginia Supreme Court addressed a similar factual scenario involving a nonresident delivering a bad check to a West Virginia resident. The defendant in that case argued that he was not subject to extradition because he was not present in West Virginia at the time the crime was committed and therefore was not a fugitive. The West Virginia Supreme Court did not agree with the defendant and upheld the extradition statute stating:
The Federal Constitution merely provides that one charged with crime who shall flee from justice shall be rendered up by the state in which he is found, to the authorities of the state from which he fled. It in no sense purports to limit extradition to these cases. It does not forbid a state to yield up to another state one charged with crime who has not in fact fled from that other state. No reason in law, expediency or comity has been suggested why extradition should be limited to those who were physically in the state at the time the crime was committed. Many crimes may be committed in a state while the culprit remains without its borders. This is particularly true where such offender acts through an agent or conspirator. Certainly one may commit the offense of uttering or delivering a bad check in a state without being physically therein.
Id. 29 S.E.2d at 248. (Emphasis added).
Likewise, in People v. Dooley, 156 A.D.2d 406, 548 N.Y.S.2d 532 (1989), the New York Supreme Court, Appellate Division, upheld the extradition of a defendant who violated the Georgia bad check statutes despite not being physically present in Georgia at the time the crime was committed. The Court stated:
Although the petitioner did not actually draw the checks in question, the evidence was sufficient to establish that he caused the checks to be issued by his wife. . . . Furthermore, it is clear from the record that the petitioner knew that there were insufficient funds to cover the subject checks at the time of utterance.
The evidence also established that the petitioner intended or believed at the time of utterance that payment would not be made when the checks were presented.
Id. 548 N.Y.S.2d at 533; see also People v. Holtzman, 91 A.D.2d 983, 457 N.Y.S.2d 575, 576 (1983).
The foregoing case law illustrates other jurisdictions' acceptance of the theory of "constructive presence." Both New York and Indiana have enacted statutes similar to Miss. Code Ann. § 7-1-25(2), which permit extradition of persons committing crimes which violated the demanding states criminal statutes while not being physically present in the demanding state. These statutes in no way offend federal extradition law, rather, they complement it. The trial judge strictly applied the four factors set forth in Allen, and gave much deference to the fact that the McCurleys were not fugitives. However, the judge ignored the intent of the legislature when they enacted § 7-1-25(2). Such strict application of the Allen factors results in a demanding state being unable to protect its own citizens from the criminal acts of nonresident persons. To hold such would frustrate the purposes for which extradition law was enacted. The theory of constructive presence as found in § 7-1-25 alters the requirement of fugitivity which is traditionally found in criminal settings. In conclusion, we reiterate that Mississippi courts are not the proper forum for the parties to air their claims. The McCurleys will be able to assert the same defenses in Louisiana as they could in this State. It is not the function of this Court in this case to pass judgment on their guilt or innocence. We therefore reverse and render the lower court's decision.
REVERSED AND RENDERED.
HAWKINS, C.J., PRATHER, P.J., and BANKS, JAMES L. ROBERTS, Jr. and SMITH, JJ., concur.
McRAE, J., dissents with separate written opinion joined by DAN M. LEE, P.J., and SULLIVAN, J.
Having reviewed the record and the law in this case, I am persuaded that the majority has come away from this "case of first impression" with the "wrong impression." Because the circuit judge correctly ruled on the matters properly before him in the habeas proceeding, I dissent.
In Michigan v. Doran, 439 U.S. 282, 99 S.Ct. 530, 58 L.Ed.2d 521 (1978), the United States Supreme Court defined the scope of review for a court considering habeas corpus relief. Review is limited to whether the extradition documents are in order; whether the petitioner has been charged with a crime in the demanding state; whether the petitioner is the person named in the extradition request; and whether the petitioner is a fugitive from the demanding state. Allen v. State, 515 So.2d 890, 891 (Miss. 1987) citing Doran, 439 U.S. at 288, 99 S.Ct. at 535, 58 L.Ed.2d at 527. In an agreed judgment and writ, approved by the Special Assistant Attorney General as well as by petitioner's counsel, the circuit judge found that the extradition documents were not in order; that "neither the Governor of the demanding State nor the Governor of the asylum State exercised informed legal discretion to request or surrender the Petitioners," and further, that the checks complained of had been "abrogated" by a new agreement between the parties; and finally, that the McCurleys were not fugitives from Louisiana.
The habeas judge must first determine whether a crime has been committed. A look at Louisiana law shows that the McCurleys committed no crime in Louisiana. They were charged with violating La. Rev. Stat. Ann. § 14:71. However, at the time of the alleged crime, checks written as payments on "open accounts" and antecedent debts were expressly exempted from the dictates of the statute. La. Rev. Stat. Ann. § 14:71(A)(1) and Reporter's Comments. The Louisiana Attorney General's Office was presented with the following scenario:
A distributor delivers a load of fuel to a local store. The fuel is placed in a storage tank at the store. The storage tank and the gas pumps at the store are owned by the distributor. A customer comes to the store and fills his car up with fuel and pays the store for the gas. The gas pump registers how much fuel was pumped. The distributor goes by the store once a week or every two weeks and checks the pumps to determine how much fuel the store has sold. He then requests payment from the store for the amount of fuel sold by the store that week. The store owner writes a check for the amount of the gas used for that week and the check is not honored by the store's bank because it is an "NSF" check.
Op. La. Att'y Gen. No. 87-444 (1987). It is indistinguishable from the facts of the case sub judice. The Louisiana Attorney General's Office found that "worthless checks issued to fuel distributors on a weekly or bimonthly account of past fuel sales by their store-customers on open accounts do not fall within the purview of LSA-R.S. 14:71." Id. Citing the Reporters Comment as well as cases where "open accounts" are discussed in the civil context, the opinion found that:
"Open account" is a legal term of art. Besides being used in the statute above, the term also appears in LSA-R.S. 9:2781 wherein a definition is provided for the purposes of that section: "'open account' includes any account for which a part or all of the balance is past due. . . ." In the normal course of business an open account is analogous to a credit account.
Id.
The Attorney General's opinion is consistent with the Louisiana courts' construction and application of the statute. In Blue Bonnet Creamery, Inc. v. Gulf Milk Association, Inc., 172 So.2d 133 (La. App. 1965), a milk delivery business issued checks to its distributor on a bi-weekly basis in payment for dairy products. After the milkman's business suffered a sharp decline, his checks began to "bounce." By mutual agreement, the distributor first allowed a balance to accrue, then insisted on the daily issuance of checks, which would often be returned two or three times, and finally, accepted only cash. The court questioned the applicability of a criminal statute to a civil proceeding, 172 So.2d at 139, and with regard to the checks issued while the balance was allowed to accrue, held that "there could be no fraud inasmuch as it is settled law that a worthless check given in payment of an open account or preexisting indebtedness cannot be issued with intent to defraud." Id. at 137, citing State v. McLean, 216 La. 670, 44 So.2d 698 (1950).
Likewise, in State v. Jones, 400 So.2d 658 (La. 1981), a grocery store credit arrangement secured by a check was found to be an "open account" and outside the purview of La. Rev. Stat. Ann. § 14:71. Id. at 660. Moreover, the court found that the defendant, an SSI recipient whose checks were returned one month after she was faced with an unexpectedly high utility bill, did not have the requisite intent to defraud the grocer. Id. at 661. Based on the statute and the case law interpreting it, it is apparent that Wilcox's complaint against the McCurleys is a civil, not a criminal matter, and that no crime was committed at all.
The circuit court further was correct in adducing that the checks complained of had been "abrogated" by a new agreement or novation between the parties. The McCurleys' assignment to Wilcox Oil Company of a promissory note, second lien on inventory, third mortgage and lease assignment, as well as the checks their daughter brought to Louisiana were novation for the civil debt owed. CHF Finance Discount "A" Co., Inc. v. Harris, 188 So.2d 457, 458 (La. 1966); Straughter v. Holy Temple of the Church of God and Christ, 150 So.2d 124, 127 (La. 1963).
In the case sub judice, the McCurleys maintain resistance to the Louisiana authorities arguing that they were not in Louisiana at the time of the alleged crime and therefore, were not fugitives. Doran affirms the McCurleys' right to establish that they were not fugitives. As stated previously, under Doran, a court which considers habeas relief is permitted to review only four elements, one being whether the petitioners are fugitives. Doran, 439 U.S. at 288, 99 S.Ct. at 535, 58 L.Ed.2d at 527. This Court has followed the same restrictions in granting habeas corpus relief. See Allen v. State, 515 So.2d 890 (Miss. 1987); Johnson v. Ledbetter, 348 So.2d 1007 (Miss. 1977); Taylor v. Garrison, 329 So.2d 506 (Miss. 1976). Mississippi defines a fugitive as "a person that has been in the demanding state at the time of the crime." Allen, 515 So.2d at 891. Therewith, this Court stated "[o]ne is not a fugitive if he establishes beyond a reasonable doubt that he was without the border of the demanding state at the time of the admission of the crime." Johnson, 348 So.2d at 1010.
Keeping in mind this Court's reasoning, the State of Mississippi alleges that the crime occurred in Louisiana. However, there is no basis for finding that the alleged crime occurred in Louisiana or that the McCurleys were in Louisiana when the alleged crimes took place. Wilcox Oil approached the McCurleys in Mississippi about selling petroleum products in Mississippi. A lease agreement was made in Mississippi and gasoline tanks and other fixtures belonging to Wilcox were installed on the McCurleys' property in Mississippi. Every week, the Wilcox representative traveled to Woodville and received a check from the McCurleys, which was written in Mississippi and drawn on a Mississippi bank. When the McCurleys fell behind in the payments on their account, the liens and mortgages granted to Wilcox were filed in Mississippi on property located in Mississippi.
La. Rev. Stat. Ann. § 14:71 requires that the checks must be issued. The Reporter's Comment to § 14:71 defines the term issue as "the first delivery of the instrument complete in form to a person who takes it as a holder." Reporter's Comment, La. Rev. Stat. Ann. § 14:71 at 713. Clearly, these checks were issued in Mississippi when the Wilcox representative collected the checks in Mississippi. This established, the alleged crime with which the McCurleys are charged could not have occurred in Louisiana. Only on one occasion were checks delivered to Wilcox in Louisiana — by the McCurleys' daughter — and this was a part of a novation, not a check, and nothing more than a promissory note.
The majority finds that the McCurleys made a constructive appearance in the case at hand. However, there is no basis for such a finding since nothing in the record even hints at the McCurleys' appearance in Louisiana. The McCurleys were always in Mississippi and never committed any of the acts complained of in Louisiana. From the record, it is apparent that all contacts between the McCurleys and Wilcox Oil were in Mississippi and not Louisiana. Therefore, the circuit court correctly found that the McCurleys were not fugitives in any shape, form or fashion.
Confusion, contradiction and discrepancies exist in the extradition documents. On their face, they are not in order and thus the third requirement in considering habeas relief is not fulfilled. The Governor's extradition writ, which provides the authority to transfer the McCurleys from Mississippi to Louisiana, states that the alleged wrongful acts occurred in Mississippi. However, the affidavit from Louisiana expressly states that the McCurleys committed the alleged bad acts in Louisiana, and the requisition application cites the crime as being committed outside the state of Louisiana.
Lastly, to add to the confusion, the warrant fails to cite where the acts were committed. Clearly, if the writ says the acts occurred in Mississippi, then Louisiana has no jurisdiction over the case. The circuit court was again correct, therefore, in holding that the extradition documents were not in order.
This case appears to be nothing but an attempt to circumvent the protection afforded to individuals in bankruptcy, wherein Wilcox Oil hoped to benefit from the restitution provisions of La. Rev. Stat. Ann. § 14:71(G). The statute under which the McCurleys were charged is not applicable to the acts complained of. The habeas court, properly acting within the scope of review established in Doran, correctly found that a novation had occurred, that the McCurleys were not fugitives and that the extradition documents were not in order. Moreover, the State, through its Assistant Attorney General, agreed to the court's findings and judgment, thus waiving its right to now complain since one may not appeal from a consent judgment. Guthrie v. Guthrie, 233 Miss. 550, 102 So.2d 381 (1958). Since no crime has been committed, the majority's opinion is in contravention to the purposes of habeas relief. Accordingly, I disagree with the majority and would affirm the findings of the circuit court.
DAN M. LEE, P.J., and SULLIVAN, J., join this opinion.