Summary
In Denny v. Foster, 204 Ga. 872 (52 S.E.2d 596) it was held that an affidavit made and sworn to by the prosecuting attorney which asserts that he knows the contents of the information and believes them to be true is sufficient.
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16549.
MARCH 14, 1949.
Habeas corpus. Before Judge Hooper. Fulton Superior Court. December 7, 1948.
Ward Matthews Jr. and Wesley R. Asinof, for plaintiff in error.
Paul Webb, Solicitor-General, C. O. Murphy and William Hall, contra.
1. Where, on a hearing of a writ of habeas corpus growing out of extradition proceedings, the requisition from the demanding State is attacked as being insufficient to give the Executive of this State jurisdiction to grant a warrant thereon, for the reason that the affidavit is made before a "notary public" instead of a "magistrate," or that it was not based on "a copy of an indictment found." Held:
( a) A requisition supported only by an affidavit made before a notary public who is not a magistrate is insufficient.
( b) A requisition that does not include a copy of an indictment, but does contain a copy of an information, and comes from a State in which an information is a proper method of charging a person with a crime, is sufficient.
No. 16549. MARCH 14, 1949.
John Denny brought habeas corpus proceedings against the Sheriff of Fulton County and the agent from the State of Michigan. Upon the hearing he was remanded to the custody of the two defendants.
Denny had been sentenced in the State of Michigan from 4 to 10 years for the offense of unlawfully taking an automobile, had been paroled, violated the terms of his parole, and the Acting Warden of the State Prison of Southern Michigan filed a petition, addressed to the Governor of Michigan, to which there was attached an affidavit signed by the acting warden and sworn to before a notary public. Certified copies of various proceedings in the State of Michigan were attached. The requisition was issued by the Lieutenant, and Acting Governor of the State of Michigan, and a fugitive-from-justice warrant issued by the Governor of Georgia.
1. It is contended that the trial judge erred in remanding the prisoner to the officers for the reason that the requisition from the State of Michigan is insufficient to form the basis of a valid fugitive-from-justice warrant. New Title 18, United States Code Congressional Service, 80th Congress, 2d Session, § 3182, the law upon which requisitions for fugitives from justice is predicated, provides that the requisition must be based on "an affidavit made before a magistrate," or "a copy of an indictment found." The attack in the instant case is made on the ground that the requisition does not comply with this provision.
( a) The affidavit in this case was signed by the acting warden and sworn to before a "notary public, Jackson County, Michigan." Vol. 1, p. 729, § 1408, of the Compiled Laws of Michigan of 1929 defines the authority of a notary public. Vol. 3, p. 5963, § 17118, defines a "magistrate." Under the law of Michigan it is clear that a notary public is not a magistrate, but his duties and authority are similar to those of a commercial notary public in this State. Accordingly, under the decision of this court in Deering v. Mount, 194 Ga. 833 (2) ( 22 S.E.2d 828), the affidavit is not sufficient to meet the requirements of the law, or make valid the requisition of the demanding State, so as to give the Executive of this State jurisdiction to grant a warrant thereon.
( b) We next look to see whether the proceedings are valid under the alternative provision of having been predicated upon "a copy of an indictment found." The proceedings contain a certified copy of an affidavit to procure a warrant, a warrant, and an information signed by the "Prosecuting Attorney for Kent County, Michigan." This information sets forth the date, venue, and describes and alleges the manner and form in which the crime was committed, and is sworn to by the prosecuting attorney, asserting that he knows the contents and believes them to be true. Also, forming a part of the proceedings, is a copy of the sentence, reciting that the accused was tried and convicted by a jury, and fixing his sentence at "not to exceed ten years and not less than four years," signed by a Judge of the Superior Court of Grand Rapids. Vol. 3, p. 5990, §§ 17215 and 17216, of the Complied Laws of Michigan of 1929 provides for the prosecution of crimes upon informations.
While the statute provides that a requisition may be based upon "a copy of an indictment found," there are decisions to the effect that the act can not be construed to exclude a case where a charge is brought in the form of a criminal information in a State in which it is a proper method of charging a person with the commission of a crime. In re Gundy, 30 Okla. Cr. 390 ( 236 P. 440); Morrison v. Dwyer, 143 Iowa, 502 ( 121 N.W. 1064); People v. Stockwell, 135 Michigan 341 (97 N.W. 765); In re Hooper, 52 Wisconsin 699 (58 N.W. 741); Ex parte Nash, 44 F.2d 403; In re Davis, 68 California App. Rep. 798 ( 158 P.2d 36); Ex parte Ryan, 75 Okla. Cr. 144 ( 129 P.2d 204); People v. Smith, 352 Ill. 496 ( 186 N.E. 159); Cook v. Rodger, 215 Ind. 500 ( 20 N.E.2d 933); In the Matter of Strauss, 197 U.S. 324 ( 49 L. ed. 774); In re Van Sciever, 42 Neb. 772, 778 (60 N.W.. 1037); Commonwealth v. Cooke, 55 Pa. Super., 435.
Though there are decisions to the contrary, it seems that the foregoing is a better interpretation of the intent of the statute, and more especially so where there has been a conviction and sentence.
Accordingly, the trial judge did not err in remanding Denny to the custody of the two defendants.
Judgment affirmed. All the Justices concur.