WRIT OF ERROR to the Criminal Court of Cook County; the Hon.
CHARLES S. DOUGHERTY, Judge, presiding.
MR. JUSTICE HERSHEY DELIVERED THE OPINION OF THE COURT:
Rehearing denied November 15, 1954.
The plaintiff in error, Elmer Goshern, hereinafter called relator, filed a petition for a writ of habeas corpus in the criminal court of Cook County praying that he be released from the custody of the sheriff of Cook County, John E. Babb. The sheriff, for his return to the writ, alleged that the relator was in his custody by and under the authority of a Governor's warrant of rendition issued by the Governor of Illinois upon the requisition of the Governor of Indiana. A hearing was held, after which the court quashed the writ and remanded the relator to the custody of the sheriff. The relator prosecutes a writ of error to this court.
On September 16, 1953, the district attorney of the forty-sixth judicial district of Indiana filed an application with the Governor of Indiana requesting a requisition to the Governor of Illinois for the apprehension of the relator. The Governor of Indiana thereupon issued a requisition to the Governor of Illinois for the extradition of the relator to Indiana, accompanying which was an affidavit by the prosecuting attorney quoting the statute which the relator was charged with violating and a copy of a complaint filed in Delaware County, Indiana, by the relator's former wife, Margaret Goshern. Said affidavit of the prosecuting attorney recited as follows:
"I hereby certify that the following is a true copy of Burns Indiana Statutes, 1942 Replacement, Section 10-1402, to-wit: `Parents Support of Children Penalty The Father, or, when charged by law with the maintenance thereof, the mother, of a child or children, under fourteen (14) years of age, living in this state, who, being able, either by reason of having means or by personal services, labor or earnings, shall willfully neglect or refuse to provide such child or children with necessary and proper home care, food and clothing shall be deemed guilty of a felony, and, upon conviction, be punished by imprisonment in the state prison or reformatory for not more than seven (7) years nor less than (1) year.'"
The complaint of Margaret Goshern, a copy of which was attached to the requisition, read, in part, as follows:
"Margaret Goshern swears she is informed and believes that Elmer V. Goshern on or about the 4th day of August, 1953 at and in the County of Delaware, State of Indiana, did then and there unlawfully wilfully and feloniously neglect and refuse to provide his minor children, to-wit: Charlotte Goshern, of the age of 15 years; John Goshern of the age of 14 years; Elmer Goshern of the age of 12 years; Opal Goshern of the age of 11 years, and Georgeann Goshern of the Age of 10 years, with the necessary and proper home care, food and clothing, the said minor children being residents of Delaware County, State of Indiana, and the said Elmer V. Goshern being then and there the father of said minor children and able by reason of having means and by personal services, labor and earnings to provide said children with the necessary and proper home care, food and clothing. Affiant further swears that she and the said Elmer V. Goshern were husband and wife and that they were legally divorced on the 27th day of April, 1949, in the Delaware Circuit Court, Delaware County, Indiana, and on said date the Judge of said court granted her the custody of said minor children and made an order against the said Elmer V. Goshern to pay the sum of $20.00 per week into the office of the clerk of said court for the support of said minor children, which order is now and has been continuously since said date in full force and effect. Affiant further swears that she is informed and believes that on or about the 1st day of July, 1951, the said Elmer V. Goshern went to and into the state of Illinois, and that on or about the 4th day of August, 1953, the said Elmer V. Goshern who was then and there in the state of Illinois did then and there wilfully and unlawfully violate the order of said court by then and there failing to comply with the same and failing to continue the support of his said minor children in the state of Indiana, and that the aforesaid acts by the said Elmer V. Goshern, in the state of Illinois did then and there intentionally on the part of said Elmer V. Goshern result in the criminal offense of, failure to provide for his minor children in Delaware County in the state of Indiana."
The Governor of Illinois issued a warrant for the arrest and extradition of the relator upon the requisition of the Governor of Indiana. He was taken into the custody of the sheriff of Cook County by virtue of that warrant and thereafter filed a petition for writ of habeas corpus in the criminal court of Cook County, charging that the requisition showed on its face that no crime was committed in Indiana and that he was not a fugitive from the justice of Indiana.
The sheriff of Cook County for his return to the writ of habeas corpus alleged that the relator was in his custody by and under the authority of a Governor's warrant of rendition issued by the Governor of Illinois upon the requisition of the Governor of Indiana, that all the papers were legal, that the relator was a fugitive from justice, that he was charged with an offense against the laws of Indiana, and that he was the person named in the Governor's warrant. He therefore prayed that the writ of habeas corpus be quashed and the relator remanded to him to be delivered to the agent of the State of Indiana.
At the hearing upon this return the relator testified that he was not in the State of Indiana on August 4, 1953, nor was he in Indiana on July 1, 1951. He admitted that he and Margaret Goshern were married in 1936 and divorced on June 12, 1949, and that five children were born of this marriage. He testified that in the last two weeks prior to the hearing he sent forty dollars to his former wife, and that the first information he had concerning an order for support of the minor children was when the warrant was sworn out against him. He stated he never saw a copy of the divorce decree, and nobody told him what it contained until he saw the certified copy.
Relator's former wife testified that the only money she had received since she and the relator were divorced was the forty dollars which she received in the two weeks prior to the hearing. She further testified that the children were now of the ages of seventeen, fifteen, thirteen, eleven, and ten.
In urging this court to reverse the judgment of the court below, the relator contends: (1) he was not substantially charged with a crime against the laws of the State of Indiana, and (2) he was not physically present in Indiana on or about the date upon which the offense with which he is charged is alleged to have been committed.
The basis of extradition is found in the Federal constitution which provides in section 2 of article IV that "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." Congress has enacted statutes implementing this constitutional provision, and the States all have legislation pertaining to certain matters not covered by Federal law on the subject. In Illinois we have the Fugitives From Justice Act. (Ill. Rev. Stat. 1953, chap. 60.) Section 2 of this act provides for a hearing after the arrest of the fugitive on a rendition warrant and before his delivery to an agent of the demanding State. This provision reads, in part, as follows: "The judge of the court in which such person is produced shall, in open court, inform the person apprehended of the cause of his arrest, the nature of the process, and inform him that if he claims (1), that the requisition and papers are not in regular and legal form; (2), that he is not the particular person named in the requisition, indictment or affidavit or in the warrant issued by the Governor; (3), that he is not substantially charged with a crime against the laws of the demanding state or (4), that he is not a fugitive from justice of the demanding state, i.e., that he was not physically present in the demanding state on or about the date upon which the offense with which he is charged is alleged to have been committed, he may have a writ of habeas corpus * * *." The relator here relies on the latter two enumerated defenses. This court said in People ex rel. Carr v. Murray, 357 Ill. 326, at page 332: "It has also been held that upon receipt of a requisition the Governor of the asylum State has two questions to pass upon: (1) Is the person demanded substantially charged with crime against the laws of the demanding state by indictment or affidavit before a magistrate? and (2) Is he a fugitive from the justice of that state? * * * The first of these questions is one of law and the second is one of fact."
We shall consider first whether the relator was substantially charged with a crime against the laws of the demanding State, Indiana. As noted above, this raises a question of law. See, also, ...