SDC 34.1707 provides that "If the Governor shall decide that the demand should be complied with, he shall sign a warrant of arrest * * *; and the warrant must substantially recite the facts necessary to the validity of its issue." It would appear that this section intends a recital in substance of jurisdictional facts referred to in SDC 34.1703, which reads as follows: "No demand for the extradition of a person charged with crime in another state shall be recognized by the Governor unless in writing and accompanied by a copy of an indictment found or by an information supported by affidavit in the state having jurisdiction of the crime, or by a copy of an affidavit made before a magistrate there, together with a copy of any warrant which was issued thereon. The indictment, information, or affidavit made before the magistrate must substantially charge the person demanded with having committed a crime under the law of that state; and the copy must be authenticated by the executive authority making the demand, which shall be prima facie evidence of its truth." The Governor's warrant does not show on its face that these requirements were complied with, and if only such warrant had been offered in evidence the order below would not have been justified, but a consideration of the entire record in my opinion shows that the trial court committed no error in discharging the writ.
The warrant in question was delivered to the sheriff of Lawrence County. Appellant was arrested and was immediately taken, as required by the provisions of SDC 34.1710, before the judge of the circuit court of that county. The court entered an order fixing a time within which to apply for a writ of habeas corpus to test the legality of his arrest and admitting appellant to bail. He then filed a petition seeking a writ of habeas corpus against the sheriff of Lawrence County and the sheriff of Monterey County, California, who had been appointed by the Governor of the *Page 173 demanding state to return appellant to that state. Respondents made returns exhibiting copies of the requisition issued by the Governor of California with accompanying documents and of the extradition warrant issued pursuant to the provisions of SDC 34.1705. This is the warrant issued to the agent of the demanding state. When the application for discharge came on to be heard appellant testified at length on his own behalf and much of his testimony bears upon his claimed innocence of the crime with which he is charged. The court made an order reciting that appellant was legally held and discharged the writ.
It appears from the requisition for extradition and accompanying documents that appellant was charged in the State of California with the crime of failure to provide for minor children in a criminal complaint subscribed and sworn to before a justice of the peace in that state. The criminal complaint and accompanying documents were duly certified as authentic by the Governor of California. The complaint charges that defendant "being then and there the father of Eileen Kaufman, age 12 years, and Darrel Kaufman, age 10 years, did willfully and unlawfully and without lawful excuse omit and refuse to furnish said minor children with necessary food, clothing and medical care. That during the aforesaid period of time the defendant has remained out of the State of California, for a period in excess of 30 days. That during the time hereinbefore stated, when the defendant willfully, unlawfully, and feloniously omitted and refused to furnish said minor children with necessary food, clothing and medical care, the said defendant was in the State of South Dakota; and that while said defendant was in the State of South Dakota, as hereinbefore stated, the said defendant did willfully, unlawfully and feloniously, and without lawful excuse, omit and refuse to furnish said minor children with the necessary food, clothing and medical care, which said acts on the part of said defendant intentionally resulted in the commission of the crime of failure to provide for minor children in the State of California; and that the said defendant now is in the State of South Dakota." The warrant of extradition recites that the demand upon which it is issued "is *Page 174 accompanied by the copy of a Complaint charging said Victor Kaufman with having committed the crime of failure to provide for minor children the same having been certified to be authentic by the Governor of said State of California."
It is argued that because appellant is described as a "fugitive from justice" in the Governor's warrant of arrest and in the requisition he cannot be returned to California as he was not in that state when the alleged crime or some overt act in its furtherance was committed. The undisputed evidence is that appellant is not a fugitive from justice within the meaning of constitutional and statutory provisions governing interstate extradition, but it appears from the requisition and accompanying documents submitted to Governor Mickelson and upon which his judgment in honoring the requisition was based that appellant is charged with an act committed in this state intentionally resulting in a crime in the State of California. The right of extradition is asserted under the provision of SDC 34.1706 which reads as follows: "The Governor of this state may also surrender, on demand of the executive authority of any other state, any person in this state charged in such other state in the manner provided in section 34.1705 with committing an act in this state, or in a third state, intentionally resulting in a crime in the state whose executive authority is making the demand; and the provisions of this chapter not otherwise inconsistent shall apply to such cases, notwithstanding that the accused was not in that state at the time of the commission of the crime, and has not fled therefrom." The validity of these provisions extending the right of interstate extradition beyond the right provided by the United States Constitution, § 2, Art. IV, and Act of Congress, 18 U.S.C.A. § 662, is not questioned.
As before pointed out, following his arrest appellant was brought before Judge Rentto and was accorded the constitutional and statutory, SDC 34.1710, right to test in the courts of this state the validity of the extradition proceedings. The question of his right to a discharge has been fully submitted and determined. The purpose of that inquiry was not to determine his guilt or innocence of the *Page 175 crime with which he is charged, but to inquire into alleged jurisdictional defects amounting to want of legal authority for his detention. In view of the sufficiency and legality of the proceedings upon which the Governor's warrant of arrest and the extradition warrant were issued, it cannot be reasonably said that appellant has been prejudiced because the warrant for his arrest did not substantially recite all facts necessary to authorize its issuance. 39 C.J.S., Habeas Corpus, § 39, note 89; see also State v. Hanley, 250 Wis. 374, 27 N.W.2d 373; Ex Parte Cupp, 129 Tex.Crim. R., 84 S.W.2d 731; In re Sanders, Ohio App., 31 N.E.2d 246. In the majority opinion reversal is sought to be justified on the ground that the Governor being vested with discretion under the state procedure may now decide that appellant should not be extradited. The authority of the Governor is not limited to a refusal to act. He may revoke a rendition as long as the accused is still within the state. 35 C.J.S., Extradition, § 16(e). In State ex rel. Nisbett v. Toole, 69 Minn. 104, 72 N.W. 53, 54, 38 L.R.A. 224, 65 Am. St. Rep. 553, the court said: "If a governor may exercise such a discretion in regard to issuing the warrant, we do not see why he may not exercise the same discretion in regard to revoking it; and, if he does revoke it, his reasons for so doing can no more be inquired into than his reasons for refusing to issue it in the first instance. The existence of the power to revoke would seem necessary, in order to prevent great abuses and wrongs. A warrant is, of necessity, almost always issued ex parte, and the governor is liable to be imposed upon by those demanding it, or, for some other cause, to issue it improvidently. It would seem that in such cases the same officer who had the exclusive power to issue the warrant should have the power to remedy the wrong by revoking it. Of course, to be effective for any purpose, the warrant must be revoked before the alleged fugitive is taken out of the state." The Governor in granting, refusing or revoking a rendition interprets his duty under the law and his actions cannot be controlled by the courts. The only question within the field of judicial inquiry is whether jurisdictional facts authorizing extradition properly appear from the requisition and accompanying *Page 176 documents. In accord with these principles and the adjudicated cases, I would affirm the order below discharging the writ.