The opinion of the court was delivered by: Shadur, District Judge.
MEMORANDUM OPINION AND ORDER
Petitioner Russell Smith ("Smith") is the subject of an
extradition warrant issued by Illinois Governor James Thompson
as the result of an extradition request by the State of
Tennessee. Smith has petitioned for a writ of habeas corpus and
respondent Richard Elrod ("Elrod"), the Cook County Sheriff,
has moved to dismiss. For the reasons stated in this memorandum
opinion and order, Elrod's motion to dismiss is denied and
Smith's petition is granted.
Smith is accused of committing an armed robbery in Tennessee
November 12, 1974. Smith filed a habeas corpus petition in the
Circuit Court of Cook County alleging several defects in the
extradition proceeding. That petition was denied at the trial
court level and the result was affirmed on appeal 85 Ill. App.3d 1198,
46 Ill.Dec. 275, 413 N.E.2d 1388 (No. 79-1245, 1st Dist.
July 25, 1980). Smith's petition for a rehearing of the Illinois
Appellate Court decision was denied and a petition for leave to
appeal to the Illinois Supreme Court was also denied (No. 53979).
Only one issue is raised by Smith's federal petition: Smith
contends that he was not in the State of Tennessee November 12,
1974. Extradition under both the federal and Illinois statutes is
appropriate only when a person is a fugitive from justice in
another state. 18 U.S.C. § 3182; Ill.Rev.Stat. ch. 60, § 19. It
is hornbook law that a person not in the state at the time of the
alleged crime (at least as to crimes requiring physical presence)
cannot be a fugitive from justice. Moncrief v. Anderson,
342 F.2d 902, 904 (D.C.Cir. 1964).
When an extradition proceeding is challenged on that ground,
the government's submission of valid extradition papers
constitutes a prima facie case. That shifts the burden to the
petitioner to prove beyond a reasonable doubt that he was not in
the state at the time of the alleged crime. United States ex rel.
Grano v. Anderson, 318 F. Supp. 263 (D.Del. 1970), aff'd,
446 F.2d 272 (3d Cir. 1971). If the extradition papers state a specific
date on which the crime was committed, the petitioner need prove
only that he was not in the state on that specific date. Hyatt v.
New York ex rel. Corkran, 188 U.S. 691, 23 S.Ct. 456, 47 L.Ed.
This Court's review of the Circuit Court of Cook County
proceeding reveals that the trial judge applied an incorrect
legal standard. At the hearing the trial judge found that the
evidence demonstrated that Smith was in the State of Illinois
continuously from October 25, 1974 until well after the date of
the alleged crime (see for example Tr. 19-20).*fn1 That finding
should have been sufficient to grant Smith's petition for a writ
of habeas corpus.
But the judge held as a matter of law that evidence showing
presence in the jurisdiction where the alleged crime was
committed within a reasonable proximity of the time mentioned in
the extradition documents is enough to require extradition (Tr.
36). For that purpose the trial court relied mistakenly on three
cases: People ex rel. Mortensen v. O'Brien, 371 Ill. 351,
20 N.E.2d 782 (1939); People ex rel. Moore v. Wirz, 349 Ill. 80,
181 N.E. 641 (1932); Strassheim v. Daily, 221 U.S. 280, 31 S.Ct. 558,
55 L.Ed. 735 (1911).
While the evidence here does not show relator was in
the demanding State on the precise date alleged, it
tends to show the crime was committed about that time
and that he was then in the city of Davenport. There
is no dispute about this. Under the authorities cited
this was sufficient for extradition. Cases holding
that a prisoner is entitled to discharge where the
Governor's warrant names a specific date as to the
commission, or time of commission, of the offense,
and on the hearing it is proved that the prisoner was
not in the demanding State on that date, and there is
no proof or offer of proof that the crime was in fact
committed on some other date nor any evidence tending
to show the prisoner was then in the demanding State,
have no application here.
In Strassheim the petitioner had committed a culpable act that
came to fruition only after he was out of the state. Under those
circumstances the Supreme Court held that he was still a fugitive
from justice because he was in the state at the time he committed
the culpable act, 221 U.S. at 285, 31 S.Ct. at 560:
[W]e think it plain that the criminal need not do
within the State every act necessary to complete the
crime. If he does there an overt act which is and is
intended to be a material step toward accomplishing
the crime, and then absents himself from the State
and does the rest elsewhere, he becomes a fugitive
from justice, when the crime is complete, if not
before. [citing cases] For all that is necessary to
convert a criminal under the laws of a State into a
fugitive from justice is that he should have left the
State after having incurred guilt there, Roberts v.
Reilly, 116 U.S. 80 [6 S.Ct. 291, 29 L.Ed. 544], and
his overt act becomes retrospectively guilty when
the contemplated result ensues.
Thus no authority has been advanced for the proposition that a
petitioner must do more than demonstrate that he was not in the
jurisdiction of the alleged crime on the specific date mentioned
in the extradition papers. In fact the Supreme Court has
explicitly stated in Hyatt, 188 U.S. at 711-12, 23 S.Ct. at 459:
In the case before us it is conceded that the relator
was not in the state at the various times when it is
alleged in the indictment that the crimes were
committed, nor until eight days after the time when
the last one is alleged to have been committed. That
the prosecution on the trial of such an indictment
need not prove with exactness the commission of the
crime at the very time alleged in the indictment is
immaterial. The indictments in this case named
certain dates as the times when the crimes were
committed, and where in a proceeding like this there
is no proof or offer of proof to show that the crimes
were in truth committed on some other day than those
named in the indictments, and that the dates therein
named were erroneously stated, it is sufficient for
the party charged to show that he was not in the
State at the times named in the indictments. . . .
Accordingly, had the trial judge applied the proper legal
standard he should have granted the writ of habeas corpus ...