Refusal of discharge on habeas corpus was not error.
No. 13503. JANUARY 16, 1941. Alfred Scheinfain filed his petition against Joseph McElroy, agent of the State of Massachusetts, and J. C. Aldredge, sheriff of Fulton County, for the writ of habeas corpus. The petition as amended alleged substantially as follows: The cause under which petitioner is restrained of his liberty is an extradition warrant of the Governor of Georgia, based upon a requisition by the Governor of Massachusetts, and which was issued without petitioner having the right to appear or be represented by his attorney. The warrant of the Governor of Georgia orders petitioner's arrest under a charge different from that contained in the certified copy of the mittimus from the Commonwealth of Massachusetts, the mittimus showing that petitioner had been convicted of the offense of "carnal abuse," whereas the warrant of the Governor of Georgia calls for petitioner's surrender under a charge of "rape of child," and the warrant is void for this reason. The requisition of the State of Massachusetts was based upon a mittimus, showing petitioner's conviction under the charge of "carnal abuse," and a sentence of fifteen to twenty years, which charge the State of Massachusetts voluntarily abandoned *Page 480 when, as the arresting and priority government, it surrendered petitioner to the Federal jurisdiction for sentence, having failed first to satisfy its own demands, which it had the right and duty to do. The same acts which brought about petitioner's sentence in the Federal court on the charge of violating the white-slave act resulted in petitioner's conviction under the charge of "carnal abuse," as set forth in the mittimus from Massachusetts. Petitioner was arrested as a fugitive from the State of Massachusetts in the State of New Hampshire, and carried back as a State prisoner, being placed in jail in July, 1936, where he was held until his "loan" to the Federal jurisdiction for sentence, November 6, 1936, after which the State jurisdiction sentenced him on the charge of "carnal abuse," and the State failed to exercise its right as the arresting government by surrendering petitioner to the Federal jurisdiction, well knowing that he would be removed beyond the confines of the State of Massachusetts. The Federal jurisdiction, with the consent of the State of Massachusetts, did imprison petitioner subject to any and all orders of the attorney-general of the United States; and petitioner was first carried against his will to the Federal penitentiary in Lewisburg, Pennsylvania, later being brought against his will to the Federal penitentiary in Atlanta, Georgia, where he was held until July 12, 1940. His arrest in Fulton County was unlawful and illegal, the mittimus containing the charge of "carnal abuse," when there is no such crime under the laws of the Commonwealth of Massachusetts, and therefore the mittimus sets forth no offense against the Commonwealth of Massachusetts, and, any arrest under any executive warrant based upon such alleged charge is void. Petitioner refused to sign his conditional release agreement from the Federal penitentiary in Atlanta, because the same contained the following: "Special Conditions: To be taken into custody by the Sheriff of Fulton County, Georgia, for authorities of Clerk of Commonwealth Court, E. Cambridge, Mass., charge of carnal abuse," petitioner having notified the Federal penitentiary authorities that he expected to resist extradition under the alleged sentence; but he was forced from the Federal Penitentiary anyway. After he was arrested as he walked from the Federal penitentiary gates, he was imprisoned by Aldredge under the illegal writ, and has been continuously held a prisoner over his protest, and has not been given the opportunity *Page 481 to appear before the Governor of Georgia or to notify him of his wish to be heard on the question of extradition. On July 22, 1940, the Governor of Georgia issued his extradition warrant naming Joseph McElroy as the agent of the State of Massachusetts as the one to whose custody petitioner was committed; and the extradition warrant, being based upon the matters and things herein complained of, was void. The Governor of Georgia was unaware of petitioner's wish to be present and resist the extradition proceedings, but the agent of the State of Massachusetts knew that petitioner would resist extradition and that he desired to be heard, because he had previously informed the agent, and the agent's failure to so inform the Governor of Georgia amounted to a fraud perpetrated upon petitioner and the Governor of Georgia. Aldredge has the actual custody of petitioner under illegal imprisonment, but it is under the direction of McElroy as the agent of the State of Massachusetts. Petitioner's imprisonment under any order of the State of Georgia, or of the State of Massachusetts, is void, because: (a) The State of Massachusetts forfeited all rights it ever had in abandoning petitioner to the Federal jurisdiction. (b) It can not legally attempt to enforce any alleged sentence or right it abandoned. (c) Any warrant from the State of Massachusetts based upon the abandoned sentence is null and void. (d) Any extradition warrant issued by the Governor of Georgia, based upon said abandoned right, is a nullity. (e) Said extradition warrant is likewise null and void for fraud in procurement, McElroy of Massachusetts having concealed from the Governor petitioner's wish to be heard and resist said extradition. (f) The extradition warrant of the Governor of Georgia orders petitioner's surrender on a charge or alleged crime different from that contained in the purported mittimus from Massachusetts. (g) The purported mittimus fails to show that petitioner was convicted of a crime against the State of Massachusetts. Petitioner attached a copy of a certificate from the Executive Department of the State of Georgia, showing that a hearing would have been granted petitioner on his extradition had the Governor or his office had any information that he desired to be heard and resist the same. Petitioner also attached copies of the rendition warrant of the Governor of Georgia; the mittimus from the State of Massachusetts, the order of the Lieutenant Governor. Acting Governor of Massachusetts, *Page 482 naming McElroy as agent, and the fugitive warrant of the Governor of Georgia, made on the affidavit of Paul H. Clower, an arresting officer of Fulton County. There is a further fatal variance between the express purpose for which the Governor of Georgia ordered petitioner extradited, and that contained in the supporting document submitted by the Governor of Massachusetts, the Governor of Georgia ordering petitioner to surrender "in order that said fugitive from justice may be brought to trial for the offense of which he stands charged," whereas the supporting document shows petitioner to have been tried, convicted, and sentenced already, and the real purpose of the extradition is to confine petitioner under said alleged sentence. Any punishment by the State of Massachusetts or his extradition from Georgia for that purpose would be a violation of the rights secured to him by the 5th amendment to the constitution of the United States (Code, § 1-805), which provides: "nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb, . . nor be deprived of life, liberty, or property, without due process of law." And petitioner's surrender to Massachusetts for punishment under the alleged sentence would be double punishment for having been placed in jeopardy twice for the same offense or act, and his imprisonment would be without due process of law, in that he was promised a sentence of five years to run concurrently with the Federal sentence, and was afterward told by the district attorney that the sentence he received was suspended, and for him not to attack the same, but when he completed the Federal sentence he would be free. The district attorney knew the character of the female complainant, and that he could not obtain a conviction in the courts of Massachusetts; and that is why petitioner was kept imprisoned from July to November, 1936, when he was surrendered to the Federal jurisdiction for prosecution under the white-slave act, and after he received a five-year sentence in the Federal court the district attorney promised a concurrent sentence if petitioner would not resist the charge. The alleged sentence set forth in the mittimus from Massachusetts is therefore void as providing double jeopardy and punishment for the same acts, and being obtained without due process of law by promises the State of Massachusetts could not or did not fulfill. This is the first time petitioner has ever been accused of any crime. Prior to the trouble he was vice-president *Page 483 of the Atlas Parlor-Suite Manufacturing Company, Newton, Massachusetts, which company his father founded in 1899.
Aldredge answered, admitting custody, but denying that it was illegal. McElroy did not answer. After the introduction of evidence showing the case substantially as stated above, the writ of habeas corpus was denied, and the plaintiff excepted. 1. "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." U.S. constitution, art. 4, sec. 2, par. 2 (Code, § 1-403). "It is the duty of the Governor, under his warrant, to cause to be arrested and delivered up to the proper officers of any other State of the United States any fugitive from justice from said State, upon demand made of him by the Executive of such other State in the manner prescribed by the laws and constitution of the United States." Code, § 44-302. Cf. Appendix, 82 Ga. 809;Lascelles v. State, 90 Ga. 347, 370 (16 S.E. 945, 35 Am. St. R. 216).
2. The petitioner for habeas corpus on a charge of violating a law of Massachusetts was arrested in New Hampshire and brought back to Massachusetts for trial. Before trial he was convicted in the Federal court of Massachusetts, on a charge of violating the Federal law. After such conviction he was tried in the State court of Massachusetts on the charge for which he had been arrested in New Hampshire. After the conviction in the State of Massachusetts he was sent to the Federal penitentiary in Atlanta. The Governor of Massachusetts made requisition upon the Governor of Georgia for the arrest and detention of the petitioner to be returned to the State of Massachusetts to serve the sentence imposed upon him by the State court of Massachusetts. The Governor of Georgia honored the requisition of the Governor of Massachusetts, and issued his warrant for the arrest of the petitioner. At the time of discharge of the petitioner by the officers of the Federal penitentiary in Atlanta, after service of his term, the sheriff arrested the petitioner on the warrant of the Governor of Georgia to be turned over *Page 484 to the officer from the State of Massachusetts. Under these facts the petitioner, brought into Georgia after his conviction in the State of Massachusetts for the purpose of serving the sentence imposed by the Federal court, and consequently not coming into Georgia from Massachusetts voluntarily, was nevertheless a fugitive from justice. Kelly v. Mangum, 145 Ga. 57 (88 S.E. 556); Hart v. Mangum, 146 Ga. 497 (91 S.E. 543);Johnson v. Lowry, 183 Ga. 207 (188 S.E. 23); Brown v.Lowry, 185 Ga. 539 (195 S.E. 759); Beavers v. Lowry,186 Ga. 557 (198 S.E. 692). He was not entitled to discharge from custody by a writ of habeas corpus on the ground that he did not voluntarily come into the State of Georgia as a fugitive.
3. On the return day of the writ of habeas corpus a motion was made by the petitioner to postpone the hearing, on the grounds: (a) "Plaintiff's counsel was physically unable to try said cause." (b) "Because plaintiff wished to attack the legality and sufficiency of any requisition issued by the Executive of the State of Massachusetts and of any supporting documents, and he had been unable to procure the necessary information or documents in the two days to properly prepare his attack." It does not appear that any evidence was offered on the question of a continuance, and the judge refused to postpone the hearing. No such abuse of discretion appears as will authorize a reversal of the judgment. Blackwell v. Jennings, 128 Ga. 264 (57 S.E. 484); Dawson v. Smith, 150 Ga. 350, 352 (103 S.E. 846,847).
4. It appeared at the trial that the respondent holds the petitioner in custody under an executive warrant based upon an extradition proceeding, and that the warrant is regular on its face. In these circumstances the burden is upon the petitioner to show some valid and sufficient reason why the warrant should not be executed. The presumption is that the Governor has complied with the constitution and the law, and this presumption continues until the contrary appears. See Code, §§ 44-302, 44-305;Barranger v. Baum, 103 Ga. 465 (5, 6) (30 S.E. 524, 68 Am. St. R. 113); Blackwell v. Jennings, supra; Dawson v.Smith, 150 Ga. 352 (2), supra. The same principle was recognized in Dawson v. Smith, 150 Ga. 350, supra, but a different result was reached on account of difference in the facts as indicated in division 4 of the opinion.
5. "The question as to whether or not the alleged fugitive from *Page 485 the justice of another State is charged with a crime is one of law, and is always open upon the face of the papers to judicial inquiry. But if the indictment which forms the basis of the extradition proceedings substantially charges a crime in conformity to the laws of the demanding State, the prisoner should not be released, however defective such indictment might be either at common law, or under the well-known rules of criminal procedure." Barranger v. Baum, 103 Ga. 465 (supra).
(a) The fact that it was customary for the Governor of Georgia to grant hearings on extraditions when requested, and that he would have done so in the instant case had he known of plaintiff's desire to contest the extradition, was insufficient to invalidate the extradition warrant of the Governor of Georgia.
(b) Designation of the alleged offense in the mittimus as "carnal abuse," and that plaintiff who had been convicted was to be extradited to serve a fifteen to twenty-year sentence, whereas the Governor's warrant stated that plaintiff was to be extradited to stand trial for the offense of "rape of child," was insufficient to void the extradition warrant on the grounds, as contended, that petitioner was to be extradited under a different charge and for a purpose different from that specified in the supporting documents. Neither does it appear by the record in this case that there was no such offense under the laws of Massachusetts as "carnal abuse." Consequently there is no merit in the contention that the extradition warrant was void on that ground.
6. The court did not err in failing to rule on the motion to compel McElroy as agent of the State of Massachusetts to file an answer.
7. The same transaction may constitute a crime under the laws of the United States and also under the laws of a State. 22 C. J. S. 448, 450, § 296 (d); Cooley v. State, 152 Ga. 469 (110 S.E. 449). Accordingly, a conviction in a Federal court for violating the white-slave law is no bar to punishment for "carnal abuse" under a State statute, even though both offenses are based on the same transaction.
8. On application of the principles stated above, the judge did not err, under the facts, in refusing to discharge the prisoner on habeas corpus.
Judgment affirmed. All the Justices concur. *Page 486