Appeal from the District Court of the United States for the Northern District of Illinois, Eastern Division.
Before ALSCHULER, EVANS, and FITZHENRY, Circuit Judges.
FITZHENRY, Circuit Judge.
This is an appeal from an order of the District Court discharging the writ of habeas corpus and remanding the relator, Leander McCline, to the custody of William D. Meyering, sheriff of Cook county, Ill., to be delivered to the agent of the state of Tennessee. Appellant had been detained by appellee under a warrant issued by the Governor of the state of Illinois upon a request by the Governor of Tennessee, accompanied by a copy of a warrant, certified as authentic by the Governor of Tennessee, charging McCline with having committed, on September 11, 1931, in the county of Maury, in the state of Tennessee, the crime of murder in the first degree.
On August 5, 1933, appellant filed a petition for a writ of habeas corpus in the criminal court of Cook county, which writ was discharged after a hearing. Appellant then sued out a writ of error in the Supreme Court of Illinois. The Supreme Court, on April 21, 1934, in an opinion reported in People ex rel. v. Meyering, 356 Ill. 210, 190 N.E. 261, affirmed the judgment of the criminal court of Cook county. Thereafter, on May 16, 1934, appellant filed a petition for a writ of habeas corpus in the District Court of the United States. The writ was issued and a hearing was held. The court found that it had jurisdiction, but concluded not to exercise its discretion upon the issues raised, for the reason that the entire matter had been before the Supreme Court of Illinois and orderly procedure in the matter suggested that petitioner might prosecute an appeal to the Supreme Court of the United States or file a petition for writ of certiorari in the latter court. Whereupon the writ was discharged and the respondent remanded to the custody of the sheriff of Cook county.
Extradition proceedings are not creatures of state law, but are controlled by the Constitution of the United States, article 4, § 2, and by sections 5278, 5279, of the Revised Statutes (18 USCA §§ 662, 663), passed thereunder. Smith-Hurd Ann. St. Ill. c. 60, § 1, Cahill Ill. Rev. St., c. 60, par. 1; People v. Meyering, 357 Ill. 166, 191 N.E. 318; People v. Baldwin, 341 Ill. 604, 174 N.E. 51. An examination of the requisition and warrant shows that the Governors of Tennessee and Illinois were attempting to comply with the section of the statute first mentioned.
The statute (Rev. St. § 5278 [18 USCA § 662]) clearly requires the requisition issued by the demanding Governor to contain "a copy of an indictment found, or affidavit made, before a magistrate * * * charging the person demanded with having committed a crime therein, certified as authentic by the governor * * * of the state from whence the person so charged has fled." Roberts v. Reilly, 116 U.S. 80, 6 S. Ct. 291, 299, 29 L. Ed. 544; Ex parte Morgan (D.C.) 20 F. 298; Ex parte Reggel, 114 U.S. 642, 5 S. Ct. 1148, 29 L. Ed. 250; Ex parte Hart (C.C.A.) 63 F. 249, 28 L.R.A. 801; Ex parte Gradington, 89 Tex. Cr. R. 432, 231 S.W. 781, 782; Compton v. Alabama, 214 U.S. 1, 29 S. Ct. 605, 53 L. Ed. 885, 16 Ann. Cas. 1098; State v. Hughes, 157 La. 652, 102 So. 824; In re Strauss, 197 U.S. 324, 25 S. Ct. 535, 49 L. Ed. 774.
In the case of Roberts v. Reilly, supra, the Supreme Court, speaking through Mr. Justice Matthews said:
"It must appear, therefore, to the governor of the state to whom such a demand is presented, before he can lawfully comply with it -- First, that the person demanded is substantially charged with a crime against the laws of the state from whose justice he is alleged to have fled, by an indictment or an affidavit, certified as authentic by the governor of the state making the demand; and, second, that the person demanded is a fugitive from the justice of the state the executive authority of which makes the demand.
"The first of these prerequisites is a question of law, and is always open, upon the face of the papers, to judicial inquiry, on an application for a discharge under a writ of habeas corpus."
The certification of the warrant is not a sufficient compliance with the statute. Ex parte Morgan (D.C.) 20 F. 298, 307; State ex rel. Covington v. Hughes, 157 La. 652, 102 So. 824; State v. Hackett, 161 Tenn. 602, 33 S.W.(2d) 422. From the latter case, it will be seen that, at the time of the issuance of the requisition in question here, by the Governor of Tennessee, there was an adjudication by the Supreme Court of that state that such a requisition was insufficient and invalid.
The statute is one involving the substantial rights of citizens, and its essential elements must be strictly followed. Ex parte Morgan (D.C.) 20 F. 298, and Ex parte Hart (C.C.A) 63 F. 249, 28 L.R.A. 801. Only by faithfully following the provisions of the statute may a person be lawfully deprived of his liberty and extradited from an asylum state to another state, there to be tried for the commission of a crime. The alleged fugitive has a right not to be imprisoned or dealt with by the states in disregard of those safeguards provided by the Constitution and statutes of the United States. Compton v. Alabama, 214 U.S. 1, 6, 29 S. Ct. 605, 53 L. Ed. 885, 16 Ann. Cas. 1098.
Upon the hearing in the District Court, when the writ was denied and the petitioner remanded, this interesting discussion took place between the court and counsel:
"Mr. Mollison: Both Governors certify that a warrant was authentic, but they never certified as to the complaint (affidavit) or indictment. You must certify one or the other. You cannot certify a ...