The extradition warrant under which the petitioner was held was not supported by legally sufficient documents from the demanding State, and the introduction in evidence of such documents by the petitioner overcame the prima facie presumption of the validity of the warrant.
No oral testimony was introduced on the hearing. The respondent introduced in evidence the warrant of the Governor of Georgia, which charged the petitioner with being a fugitive from justice from the State of Indiana, charged with committing "the crime of vehicle taking and escape."
The petitioner introduced in evidence the supporting documents for this warrant, as follows: (1) An application to the Governor of Indiana for the issuance of a requisition to the Governor of Georgia for the apprehension of Charles Brown, charged by an affidavit with the crime of "escape." This application asserts that Charles Brown was committed to the Indiana Reformatory by the Franklin County Circuit Court on March 11, 1943, being convicted of vehicle taking, and sentenced to an indeterminate period of not less than one year and not more than ten years; that he escaped from the reformatory, and is now confined in the United States Penitentiary at Atlanta, Georgia, where he is to be released on April 15, 1958, and will be turned over to the Sheriff of Fulton County, Georgia. William Eitelman is nominated as a proper person to be appointed to receive the alleged fugitive. This application was signed by Melvin B. Thornburg, Prosecuting Attorney. Stamped on the face of the application is the following: "Approved the 15th day of April, 1958. [Signed] Harold W. Handley, Governor, State of Indiana." (2) An affidavit by Robert J. Duncan, stating that the facts set forth in the foregoing application are true. This affidavit was dated April 14, 1958, and sworn to before Russell E. Stewart, Circuit Court Judge, 50th Judicial Circuit. (3) An affidavit entitled "Affidavit for Escape" by Robert J. Duncan, dated April 14, 1958, sworn to before the same circuit court judge, as follows: "Robert J. Duncan, being first duly sworn upon his oath, says that he is informed and believes that on or about the 17th day of January, 1956, at and in the County of Madison, State of Indiana, the defendant, Charles Brown, did unlawfully and feloniously escape from the Indiana Reformatory, having been committed to the Indiana Reformatory at Pendleton, Indiana by the Franklin County Circuit Court on the 11th day of March, 1943, having been convicted of vehicle taking, and being committed for an indeterminate period of not less than one year and not more than ten years, all being contrary to the form of the Statute in such cases made and provided, and against the peace and dignity of the State of Indiana." (4) Authentication affidavits by the Clerk and Judge of the Madison Circuit Court. (5) Certified copy of warrant by the Clerk of Madison County, Indiana, to the sheriff of that county, commanding the arrest of Charles Brown on a charge of "escape."
The trial judge remanded the petitioner to the custody of the respondent, and the exception is to that judgment.
"When, in the trial of a habeas corpus case, it appears that the respondent holds the petitioner in custody under an executive warrant based upon an extradition proceeding, and the warrant is regular on its face, the burden is cast 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." Blackwell v. Jennings, 128 Ga. 264(2) (57 S. E. 484); Broyles v. Mount, 197 Ga. 659, 660 (30 S. E. 2d 48). The executive warrant is only prima facie sufficient to hold the accused, and he is entitled to show, in a habeas corpus proceeding, some valid and sufficient reason why the warrant should not be executed. Dawson v. Smith, 150 Ga. 350 (103 S. E. 846).
The question as to whether or not the extradition warrant under which an alleged fugitive from justice is held is supported by documents from the demanding State legally sufficient to authorize his extradition is always open to judicial inquiry in a habeas corpus proceeding. Barranger v. Baum, 103 Ga. 465 (30 S. E. 524, 68 Am. St. R. 113); Scheinfain v. Aldredge, 191 Ga. 479, 484 (12 S. E. 2d 868); Deering v. Mount, 194 Ga. 833 (22 S. E. 2d 828); Ellis v. Grimes, 198 Ga. 51 (30 S. E. 2d 921).
It is urged by the petitioner in the present case that the affidavit of Robert J. Duncan, supporting the application for requisition to the Governor of Indiana, shows on its face that no crime was committed, since the affidavit asserts that the petitioner was committed to the Indiana Reformatory on March 11, 1943, to serve an indeterminate sentence with a maximum of ten years, and that he escaped on January 17, 1956, more than two years after his sentence expired.
There is nothing in any of the documents supporting the extradition warrant to show any extension of the sentence for any cause. A habeas corpus court is not free to speculate on some state of facts which might have resulted in an extension of the sentence. The crime of escape could not be committed after a sentence had expired. When the affidavit supporting the request for extradition shows that no crime was committed, it is insufficient to sustain an extradition warrant. Barranger v. Baum, 103 Ga. 465, supra.
Since the petitioner attacked the documents under which the extradition warrant was issued as being insufficient to charge him with the commission of a crime, we call attention to another deficiency in these documents, although this deficiency is not specifically urged by the petitioner. Counsel for the respondent in argument before this court conceded that the documents introduced at the habeas corpus hearing were all of the documents supporting the executive warrant. In these documents there is no formal demand on the Governor of Georgia by the Governor of Indiana for the extradition of the alleged fugitive.
Tit. 18 U. S. C. A. 60, 3182 implements the provisions of the United States Constitution in regard to the extradition of fugitives from justice, and requires that there be a formal demand by the executive authority of the demanding State on the executive authority of the asylum State, and that the indictment or affidavit charging such fugitive with treason, felony, or other crime be certified as authentic by the governor or chief magistrate of the demanding State. In West v. Graham, 211 Ga. 662
(87 S. E. 2d 849), it was held that, without such demand and authentication by the chief executive of the demanding State, the chief executive of the asylum State has no authority to issue an extradition warrant. Compare Ex Parte Anderson, 135 Texas Crim. Rep. 291.
The documents under which the extradition warrant was issued were insufficient to support the warrant, and the trial judge erred in remanding the petitioner to the respondent.
Judgment reversed. All the Justices concur.