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Waller v. Jordan

Supreme Court of Arizona

November 3, 1941

TOM TILLEY WALLER, Appellant,
v.
LON JORDAN, as Sheriff of Maricopa County, Arizona; and TED LEWIS, Also Known as CLIFF LEWIS, Sheriff of Burleson County, Texas, and Agent of the Governor and State of Texas, Appellees

APPEAL from an order of the Superior Court of the County of Maricopa. Dudley W. Windes, Judge. On appellant's application to be admitted to bail pending his appeal. Application denied.

Mr. Jacob Morgan, for Appellant.

Mr. Richard F. Harless, County Attorney, and Mr. E. R. Thurman and Mr. Charles B. McAlister, Deputy County Attorneys, for Appellees.

OPINION

Page 451

[58 Ariz. 170] ROSS, J.

This is an application for bail pending his appeal from an order of the Superior Court of Maricopa County refusing, in an extradition proceeding, to discharge appellant on a writ of habeas corpus or to allow him bail pending his appeal. The validity of the last order is the only question involved.

[58 Ariz. 171] It appears from the pleadings that, upon a requisition from the Governor of Texas, the Governor of Arizona has issued an extradition warrant authorizing the return of appellant to the demanding state upon a charge of assault with intent to commit murder and for failure to provide for his wife and minor children.

The appellant alleges that the charges are groundless, not bona fide, and are fraudulent and illegal; that he had not committed said alleged crimes or any crime against the State of Texas. He further alleges that he should be released on bail in order that he might continue to support his wife and minor children at his occupation of railroading. He alleges that his imprisonment is involuntary servitude under the Thirteenth Amendment to the Federal Constitution and a form of peonage under the federal laws. Title 18 U.S.C.A., § 421.

The Federal Constitution and the Acts of Congress provide for the process of extradition which means "the surrender by one state... to another of an individual accused or convicted of an offense outside of its own territory, and within the territorial jurisdiction of the other, which, being competent to try and punish him, demands the surrender...." 25 C.J. 254, sec. 1.

The asylum state may pass laws in aid of the federal laws and Constitution and

Page 452

when consistent therewith are valid and should be followed in such proceeding. The state laws usually provide for the arrest and safekeeping of the fugitive until the demanding state has had time to present a proper and legal requisition for the fugitive's return. This state in 1937 for that purpose passed the Uniform Law with reference to extradition. Article 36 (secs. 44-3601 to 44-3630) Arizona Code 1939. Section 44-3618 thereof provides, pending the issuance of an extradition [58 Ariz. 172] warrant, that "unless the accused give bail as provided in the next section," he shall be committed to jail. The next section (44-3619) reads as follows:

"44-3619. Bail except in capital and life imprisonment cases. -- Unless the offense with which the prisoner is charged is shown to be a capital offense, where the proof is evident or the presumption great, under the laws of the state in which it was committed, the judge or magistrate must admit the person arrested to bail or bond or undertaking, with sufficient sureties, and in such sum as he deems proper, for his appearance before him at a time specified in such bond or undertaking, and for his surrender, to be arrested upon the warrant of the governor."

This section shows that the bail ceases with the arrest of the accused "upon the warrant of ...


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