APPEAL from the Criminal Court of Cook County; the Hon.
CHARLES S. DOUGHERTY, Judge, presiding.
MR. CHIEF JUSTICE BRISTOW DELIVERED THE OPINION OF THE COURT:
Rehearing denied February 15, 1955.
Charles Price Webb, herein called petitioner, is appealing from a judgment entered by the criminal court of Cook County quashing a writ of habeas corpus and remanding petitioner into custody of the sheriff of Cook County by virtue of a Governor's warrant issued pursuant to a request for extradition by the Governor of Indiana.
The appeal presents the issues of whether the requisition order and supporting documents were executed in compliance with the Federal extradition statute (18 U.S.C.A., chap. 209, sec. 3182,) and whether the petitioner could be deemed a fugitive from justice of the demanding State under the terms of that statute.
From the record it appears that on October 10, 1953, between 7:30 and 8:00 A.M., a pawn broker's establishment, located at Indiana Avenue in Indianapolis, Indiana, was robbed by two men, who escaped with proceeds allegedly valued at $15,000. Subsequently, two of the State's witnesses identified the petitioner from pictures as one of the men participating in the robbery, and on October 28, 1953, petitioner was arrested in Chicago.
The Governor of Indiana sent a requisition for extradition dated November 2, 1953, to the Governor of Illinois, which recited that by the attached papers, which are certified as authentic, Charles Price Webb is charged by an affidavit pending in the criminal court of the county of Marion with the commission of robbery while armed, that Webb has fled from Indiana and taken refuge in Illinois, and that pursuant to the constitution and laws of the United States requisition is made for the delivery of Webb to an agent of the Indianapolis police department.
The supporting documents included first an application for requisition by the prosecuting attorney, subscribed and sworn before a justice of peace, Ernest Lane, reciting that Webb is charged by an affidavit pending in the criminal court of Marion County with the crime of robbery while armed, that he has fled from the State of Indiana and into the State of Illinois, where he is in jail, and that sufficient evidence can be produced in the prosecution of Webb to secure his conviction; and nominating a police agent from Indiana to receive the fugitive.
The supporting documents also included a certified copy of the affidavit, signed by Garland Jones and subscribed before Ernest Lane, the justice of peace, on October 28, 1953, which was filed in the criminal court of Marion County, charging petitioner with the aforementioned crime. There is also a certification by the clerk of Marion County, executed on November 2, 1953, that Ernest Lane was on that date a duly commissioned justice of peace, a list of the State's witnesses in the cause signed by the clerk of the court and prosecuting attorney, and a certification by the judge of the criminal court of Marion County that the clerk was the proper officer to have custody of such papers and to attest thereto, and that his signature was genuine.
Pursuant to this requisition by the Governor Indiana and the supporting documents, the Governor of Illinois executed a warrant for petitioner on December 6, 1953.
Petitioner, however, had been taken into custody on November 19, 1953, and a writ of habeas corpus was issued the same day. The hearing on the writ was continued until December 22, 1953, and again until January 26, 1954.
At that hearing, after the requisition documents were introduced, petitioner offered testimony of witnesses to establish that he was in Chicago at the time of the commission of the alleged offense. Petitioner's employer testified that when he arrived at his barber shop at about 9:30 A.M. on the morning of October 10, 1953, Charles Webb was already there, and that Webb left the shop at about 10:00 A.M. to go to a funeral. Webb returned to work at about 2:30 or 3:00 P.M. and remained there until 9:30 P.M. A witness, through whom petitioner was buying a suit, since his own credit was inadequate, stated that petitioner made a payment at his place of business at about 10 minutes to 10 o'clock that morning. Another witness on petitioner's behalf, a chef on the Pennsylvania Railroad, testified that when he went to deliver a cake at the home of petitioner's sister on October 10, 1953, between 10:00 and 11:00 A.M., he saw petitioner there. Petitioner's sister stated that he came to her home around 10:00 A.M., and he drove her to a funeral service at which she was to play the organ. The undertaker stated that he saw petitioner in the car as he and his sister drove up. Petitioner's mother and brother both testified that Charles Webb was at home at 7:00 A.M. and until he left for work on the morning of October 10, 1953.
In rebuttal, the State offered the testimony of the proprietor whose store was robbed, who described the robbery and identified the petitioner in court as the person who committed the crime. The State also offered the testimony of a 16-year-old employee in the store at the time of the robbery, who identified petitioner's photograph, but failed to clearly identify him in court.
The trial judge held that in an extradition proceeding the judge in the asylum State cannot properly discharge the petitioner under a writ of habeas corpus where there is merely controverted alibi evidence that petitioner was not in the demanding State at the time the crime was committed. He held that it must be conclusively shown beyond any possibility of doubt that the petitioner could not have been in the demanding State. Hence, the writ was quashed and the petitioner was remanded to the custody of the sheriff.
In determining the propriety of that judgment we shall consider first the sufficiency of the requisition papers, questioned ...