Ex parte RICCARDI.
Appeal from Superior Court, Cochise County.
Proceeding in the matter of the application of Constantino Vincent Riccardi, also known as C. Vincent Riccardi, for a writ of habeas corpus. From an order discharging petitioner from custody under extradition warrant, the State of Arizona appeals.
Evo DeConcini, Atty. Gen., Perry M. Ling, Chief Asst. Atty. Gen., and Chas. D. McCarty, Asst. Atty. Gen., for appellant.
Nasib Karam, of Nogales, and Whitney, Ironside & Whitney, of Phoenix, for appellee.
Patterson, Superior Judge. La Prade, C. J., and Udall, Stanford, and Phelps, JJ., concur. De Concini, J., being disqualified, the Honorable W. E. Patterson, Judge of the Superior Court of Yavapai County, was called to sit in his stead.
[68 Ariz. 183] This is an appeal by the state of Arizona from an order of the superior court of Cochise County discharging one Constantino Vincent Riccardi (appellee) after a hearing on habeas corpus. Appellee, prior to his discharge, was being held by Percy Bowden, chief of police of Douglas, Arizona, by authority of a governor's warrant on extradition, issued by the governor of Arizona at the request of the governor of New York.
The demanding state of New York had theretofore presented extradition papers for Riccardi, based upon indictment found by a New York grand jury of the county of New York, state of New York, which accused Riccardi, together with one Andrew Jackson Dougherty, on four counts of the crime of grand larceny, committed in the state of New York. A fifth count against Riccardi accused him of violating a judgment of injunction of the supreme court of the state of New York.
The extradition papers, presented to the governor of the state of Arizona, appear to be duly certified by the governor of New York as authentic. The authenticated papers contain, among other things, a copy of the indictment and an affidavit in support of the extradition proceedings, executed by one Albert F. Grilli, which was sworn to before a notary public of the state of New York. This affidavit stated that Riccardi was actually in the county and state of New York at the time stated in the indictment that the alleged offense occurred, and that Grilli had seen him in New York at the times mentioned.
After Riccardi had been arrested under the extradition warrant issued by the governor of Arizona, he filed a petition for a writ of habeas corpus, alleging among other things that he was unlawfully imprisoned, detained, and restrained of his liberty. Based upon said petition, a writ of habeas corpus was duly issued.
A return was filed setting forth that Riccardi was lawfully arrested and detained by virtue of the Arizona extradition warrant. Riccardi filed a reply to the return, setting forth among other things that he was not a fugitive from justice from the state of New York, and that the documents presented by the demanding state did not show each and every matter required to be shown as required by paragraphs 1 and 3, section 44-3608, Arizona Code Annotated, 1939. Petitioner contended also that the demanding state had not presented to the Arizona governor a warrant of arrest, or a copy thereof, issued by the New York court.
The state filed a motion to dismiss petitioner's reply, which was denied by the court.
A hearing was duly had before the superior court of Cochise County, and after considering the evidence presented, the court rendered its decision as follows:
"The Court: Gentlemen, I have come to the conclusion, very reluctantly, there is no [68 Ariz. 184] testimony in this case whatever that Mr. Riccardi was in New York at the time of the commission of the offense. There is a bare innuendo. Furthermore, I believe that the failure of the record before -- by which I am bound -- to have a copy of a warrant is a fatal defect; and for the reasons given, for the proof he wasn't in New York and the Governor not being authorized to issue the warrant, the writ will be granted."
Appellant bases its appeal upon ten assignments of error, and sets forth eighteen propositions of law based thereon. We will consider appellant's assignments of error Nos. 5, 7, and 10, which will dispose of this appeal.
5. "The court erred in discharging petitioner from custody, restraint, imprisonment
and detention by virtue of the Governor's warrant on rendition in that:
"(1) There was conflict in the evidence as to the alleged fugitive's presence or absence ...