Ex parts FREEMAN, William R. FREEMAN, Appellant,
L. C. BOIES, Sheriff of Maricopa County, Arizona, Appellee.
[80 Ariz. 22] Flynn, Van Haren & Stewart, Phoenix, for appellant.
Robert Morrison, Atty. Gen., and Gordon don Aldrich, Asst. Atty. Gen., of Phoenix, for appellee.
This proceeding presents an appeal from an order of the Superior Court denying the discharge of William R. Freeman, petitioner-appellant (hereinafter referred to as appellant), after a hearing on a writ of habeas corpus. From the response of Sheriff Boies, in his return to the writ, it appears that he was holding appellant as a fugitive, pursuant to a warrant issued by the Honorable Howard Pyle as Governor of the State of Arizona, granting extradition of appellant to the State of New Mexico.
The proceedings leading up to this appeal are as follows: 'Governor Mecham of New Mexico had theretofore demanded rendition of one William R. Freeman, as a fugitive from prosecution based upon a criminal complaint charging said person with the issuance of a fraudulent check drawn on the Mimbres Valley Bank of Deming, New Mexico. The Governor of Arizona, acting under the provisions of Section 44-3607, A.C.A.1939, called upon the Attorney General of Arizona '* * * to investigate * * * the demand, and to report to him * * * whether he ought to be surrendered.' The matter was referred to William T. Birmingham, as assistant to the Attorney General, who on April 20, 1954, conducted a hearing at which (from the minutes now before us) a person designated as William R. Freeman, Accused, appeared and was sworn, but on advice of counsel claimed his constitutional privilege and declined to testify. However, appellant's attorney thereafter did make the following statement to the Governor's representative:
'I have no objection to waiving the privilege for limited purposes requiring them to any agreement that she may have had with Mr. Ruebush (the complaining witness). In fact, I am perfectly
willing to let you examine the entire transaction in relation to the bank and under oath and Mr. Freeman, who is employed by that bank, is familiar with their records.' (Emphasis and insert supplied)
Apparently the Governor was advised by the Attorney General to grant the extradition because we find from the record that on the same day the chief executive signed 'Governor's warrant on extradition' in which it is recited, inter alia:
'* * * that the said person in custody is the identical person named in the request for extradition, to wit: William R. Freeman, and it appears that he ought to be surrendered.'
The next day appellant, William R. Freeman, filed a petition for a writ of habeas corpus alleging some five grounds why his [80 Ariz. 23] imprisonment and restraint were illegal. Number two thereof-which is the only one we are here concerned with-reads:
'That there has been no showing at any time that the said William R. Freeman, for which said Governor's warrant has been issued, is the William R. Freeman which is in custody pursuant to said warrant or any showing that petitioner has ever been in the State of New Mexico.'
A writ of habeas corpus was promptly issued, and a hearing was later held at which (according to the minutes) William R. Freemand and his daughter Janice Freeman were both sworn and testified. No transcript of this hearing is before us, but according to a stipulation, approved by the court, the hearing 'was lacking in evidence that he (appellant) is the same person named in the extradition proceedings.' The trial court after taking the matter under advisement entered an order denying release of appellant and in effect quashed the writ. This appeal followed.
Appellant presents but two assignments of error and two propositions of law. The narrow question raised is neatly summarized in his brief, viz.:
'Appellant raises no issue as to the sufficiency of the papers or as to the fugitive status of the person demanded. The sole question which appellant raises is the total failure in all proceedings to establish that the petitioner is the person charged and demanded in the State of New Mexico.'
He now contends that in the extradition proceedings before the Governor or his representative, and in the subsequent habeas corpus proceedings, the state had the burden-which it allegedly failed to sustain-of affirmatively establishing the identity of the accused with the person named in the requisition papers even though such matter was not made an issue in either of said hearings. In effect William R. Freeman is now saying: 'Regardless of whether or not I am the man thus named in the extradition papers, the state has not proved I am that man, hence I should be discharged.' The authorities presented in support of this wholly untenable argument are either not in point or readily distinguishable. Particularly we ...