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Ex parte Rubens

Supreme Court of Arizona

November 26, 1951

Ex parte RUBENS.
v.
BOIES, Sheriff et al RUBENS

Rehearing Denied January 8, 1952.

Affirmed.

Geo. F. Macdonald, of Phoenix, for appellant.

Fred O. Wilson, Atty. Gen., and Chas. Rogers, Asst. Atty. Gen., for appellees.

La Prade, Justice. Udall, C. J., and Stanford, Phelps and De Concini, JJ., concur.

OPINION

La Prade, Justice.

Page 403

[73 Ariz. 103] This proceeding presents an appeal from an order of the Superior Court of Maricopa County denying the discharge of appellant on a writ of habeas corpus that had theretofore been issued for the purpose of inquiring into the legal cause for the arrest and detention of appellant by the respondents below. By the response of Earl O'Clair, Chief of Police of the City of Phoenix, he admitted that appellant was physically confined in the city jail of the city of Phoenix which was under his jurisdiction; alleged that he had had physical and legal custody of appellant under and pursuant to a fugitive from justice warrant theretofore issued [73 Ariz. 104] by the Justice Court of the West Phoenix Precinct, Maricopa County, Arizona, but that he had surrendered legal custody of appellant to H. M. Morris, "deputy sheriff and lieutenant of Solano County, California", under and pursuant to the warrant of the Governor of the State of Arizona granting extradition of appellant to the state of California, and designating said Morris as the agent of the state of California to receive and take appellant into custody.

Request for extradition of appellant to the state of California had been regularly presented to the governor of the state of Arizona and by him granted as evidenced by his warrant for extradition. Subsequent to the issuance of this warrant, counsel for appellant filed his petition with the Superior Court of Maricopa County seeking a writ of

Page 404

habeas corpus for and on behalf of appellant upon the ground that the appellant was illegally and unlawfully restrained of his liberty. The facts of illegality relied upon were:

1. The supporting affidavits for the issuance of the warrant of arrest by the California justice court were not sworn to before a magistrate as required by section 3182 of Title 18 U.S.C.A., where the same are to be used for the purpose of extradition.

2. The criminal complaint lodged in the justice court of the state of California failed to charge a criminal offense.

The application for a requisition on the governor of the state of Arizona for the arrest and rendition of appellant was regularly presented by the Honorable Earl Warren, Chief Executive of ...


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