dissenting. As briefed and argued before this court, the only issue was “whether the extradition documents on their face are in order.” The pertinent section of General Statutes § 54-159 requires, for recognition of extradition demand, “a copy of an affidavit made before a magistrate there, together with a copy of any warrant which was issued thereupon . . . . ” (Emphasis added.) No great semantical exegesis is required to demonstrate that a warrant together with an affidavit made some four months later, was not issued “thereupon.”
Webster, Third New International Dictionary defines “Thereupon,” in definition two, as “on account of or in consequence of that . . . .” Beyond cavil, warrants issued on September 1,1982, September 21,1982, and October 15,1982 were not issued in consequence of an affidavit dated February 7, 1983.
Rather than deciding the narrow issue raised in this case, the majority concludes, on the basis of the federal extradition statute, 18 U.S.C. § 3182, that Connecticut’s more exacting terms concerning the necessary extradition documents are not controlling. In my view, under the circumstances of this case, this court should not decide the case on a constitutional basis not claimed by the state and which the defendant, therefore, has never had the chance to meet.
The recent case of State v. Martin, 2 Conn. App. 605, 482 A.2d 70 (1984), is entirely apposite. “The rule that claims on appeal should first be made at trial ‘ “applies *521to criminal as well as civil cases.” ’ State v. Johnson, 166 Conn. 439, 445, 352 A.2d 294 (1974). That rule applies to the state as well as to the defendant. We therefore decide this case on the theory on which it was tried and decided in the trial court, and briefed and argued in this court. Beckenstein v. Potter & Carrier, Inc., 191 Conn. 120, 132, 464 A.2d 6 (1983).” Id., 612B.
Fundamental fairness in the context of a habeas corpus action concerning extradition at least requires reargument on the issue of the controlling effect of the federal statute on interstate extradition, 18 U.S.C. § 3182.
For the foregoing reasons, I dissent.