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THE

SOUTHERN REPORTER

VOLUME 64

(106 Miss. 436)

YAZOO & M. V. R. CO. v. HARDIE.

(No. 16,271.) (Supreme Court of Mississippi. Jan. 19, 1914.) CARRIERS (§ 271*)-INJURIES TO PASSENGERLIABILITY.

*

night was dark, cold, and rainy, the roadway
was muddy, and Mask, who was an old and
feeble man, was very much exhausted when
* The evidence of
he reached home.
the two physicians was further to the effect
that his sickness after the walk from Lula,
and continuing to the time of his death, was
most probably induced by his exposure, and
being compelled to walk from the railroad

Where a passenger was carried by her destination through the negligence of the railroad employés, and thereby delayed several hours in reaching the station of destination, as a result of which she went from the station of destina-station to his home." We are unable to distion to her ultimate destination in a rainstorm, and was thereby made sick, the company was liable for the injuries sustained by reason of the journey from the station to her destination. [Ed. Note. For other cases, see Carriers, Cent. Dig. §§ 1067-1071; Dec. Dig. § 271.*] Appeal from Circuit Court, Coahoma County; Sam C. Cook, Judge.

Action by Mrs. W. H. Hardie against the Yazoo & Mississippi Valley Railroad Company.

From a judgment for plaintiff, defendant appeals. Affirmed.

Mayes & Mayes, of Jackson, for appellant. Cutrer & Johnson, of Clarksdale, for appellee.

tinguish the difference between the Mask Case and this case; the injury in both cases resulted from the trip from the depot to their homes, and we are therefore of the opinion that the instruction given for the appellee and complained of by appellant was correct. L. N. O. & T. R. R. Co. v. Mask, 64 Miss. 738, 2 South. 360.

If the jury accepted the testimony of the appellee as to the injury as being true, which the verdict shows they did, we do not think the judgment was excessive. Affirmed.

(106 Miss. 438) WARREN et al. v. YATES. (No. 16,124.) (Supreme Court of Mississippi. Jan. 19, 1914.) CLERKS OF COURTS (§ 18*)-—FEES-RULE OF

OWEN, Special Judge.1 This case was before the court, and a full report of it, including the statement of facts, is shown in that report in Y. & M. V. R. R. Co. v. Hardie, 1001. Miss. 132, 55 South. 42, 967, 34 L. R. A. (N. COURT. S.) 740, 742. The case was then reversed because of a punitive damage instruction. In second trial in the lower court a judgment was rendered in favor of the plaintiff for $5,000, from which this appeal is taken.

There are only two assignments of error relied upon by appellant's counsel: First, that the railroad is not liable for any injury claimed to have been sustained by Mrs. Hardie by reason of a journey from the depot to Mrs. Hairston's house; second, that the judgment is excessive.

We think the first objection is answered by the decision of this court in the case of L. N. O. & T. R. R. Co. v. Mask, 64 Miss. 738,

2 South. 360. In the statement of facts in that case we find the following: "Mask got off the train, and went back to the depot, and, finding no conveyance there, had to walk home, a distance of three-quarters of a mile. This was about 12 o'clock at night, and the

1 COOK, J., having tried the case below, THOMAS appeal.

The clerk of the court below, who copies several documents into the record more than (59 South. vii), is not entitled to fees for copyonce, in violation of Supreme Court rule 2 ing such documents more than once.

[Ed. Note. For other cases, see Clerks of Courts, Cent. Dig. §§ 44, 47, 48; Dec. Dig. § 18.*]

2. CLERKS OF COURTS (§ 18*)-FEES-RULES. Supreme Court rules, declaring that, where ord in violation thereof, he is not entitled to the clerk of the court below makes up the reccollect any fees therefor, does not apply to a case in which the record was filed before the

rules were promulgated.

[Ed. Note. For other cases, see Clerks of

Courts, Cent. Dig. §§ 44, 47, 48; Dec. Dig. §

18.*]

Appeal from Chancery Court, Neshoba County; J. F. McCool, Chancellor.

On appellees' motion to retaz costs. Μο tion granted.

See, also, 63 South. 576.

S. OWEN, Special Judge, sat in his stead on this

Baskin & Wilbourn, of Meridian, for the motion. Flowers, Alexander & Whitfield and J. T. Brown, all of Jackson, opposed.

SMITH, C. J. [1] The clerk of the court below has copied several documents into this record more than once, in violation of rule 2 (59 South. vii). He is not entitled to fees for copying these documents more than once, and the motion to retax the costs will there fore be sustained.

[2] Under the recent revision of the rules of this court, where the clerk of the court below makes up a record in violation thereof, he is not entitled to collect any fees at all for making the record. In this case, however, the record was filed before the promulgation of those rules, and the clerk, therefore, will be entitled to fees for copying these documents once.

Motion sustained.

(106 Miss. 439)

refusing extradition and discharging accused on habeas corpus.

[Ed. Note.-For other cases, see Extradition, Cent. Dig. §§ 45, 46; Dec. Dig. § 39.*] 6. EXTRADITION (§ 39*)-DEFENSES. It cannot be claimed that accused should not be extradited as a fugitive from justice from Louisiana, because he is held for the same offense in Mississippi, where the proceeding the date of the hearing of accused's application against him in this state was dismissed before for habeas corpus.

[Ed. Note.-For other cases, see Extradition, Cent. Dig. 88 45, 46; Dec. Dig. § 39.*]

Appeal from Circuit Court, Pearl River County; A. E. Weathersby, Judge.

Application for habeas corpus by W. C. Walters. From a judgment dismissing the petition and ordering relator into custody, he appeals. Affirmed.

Dale & Rawles, of Columbia, for appellant. Geo. H. Ethridge, Asst. Atty. Gen., opposed.

REED, J. This is an appeal from the judgment of the circuit court of Marion county denying the relief prayed for by relator, William C. Walters, dismissing his habeas corpus petition, and ordering him delivered 1. EXTRADITION (§ 24*)-DUTY OF STATE EX-to the authorized agent of the state of Louisi

Ex parte WALTERS. (No. 17,120.) (Supreme Court of Mississippi. Jan. 12, 1914.)

ECUTIVE.

Under the substantially direct provisions of Rev. St. U. S. § 5278 (U. S. Comp. St. 1901, p. 3597), enacted pursuant to Const. U. S. art. 4, § 2, cl. 2, it is the duty of an executive of a state, where a fugitive from justice

from another state is found to have him arrested and delivered to the agent of the executive of the state demanding him to be taken to

that state.

[Ed. Note. For other cases, see Extradition, Cent. Dig. § 28; Dec. Dig. § 24.*]

2. EXTRADITION (§ 35*)-PROCEEDINGS-PROOF OF CHARGE.

While the executive of a state, to which a criminal has fled, may require proof that the accused is a fugitive from justice, the character of such proof is not described, and his determination of that fact may be based upon the requisition and accompanying papers or an independent inquiry.

[Ed. Note.-For other cases, see Extradition, Cent. Dig. 39; Dec. Dig. § 35.*] 3. EXTRADITION (§ 36*)-ISSUANCE OF WARRANT-EFFECT.

The issuance of a warrant of extradition makes a prima facie case in favor of the demanding state.

[Ed. Note.-For other cases, see Extradition, Cent. Dig. §§ 40-43; Dec. Dig. § 36.*] 4. HABEAS CORPUS (§ 19*)-PURPOSE OF WRIT -EXTRADITION PROCEEDINGS.

Habeas corpus proceedings may be instituted to determine whether an accused is subject to extradition as a fugitive from justice, though the issuance of the warrant makes a prima facie case in favor of the right of extradition.

[Ed. Note. For other cases, see Habeas Corpus, Cent. Dig. § 17; Dec. Dig. § 19.*] 6. EXTRADITION (§ 39*) — DEFENSES CON

FLICTING EVIDENCE OF GUILT.

That the evidence as to whether one sought to be extradited for a crime claimed to have been committed in Louisiana is conflicting as to whether accused was present in that state when the crime was committed is not ground for

ana to be conveyed to that state to answer the charge of kidnapping.

On April 22, 1913, an affidavit was made in the court of the city judge of Opelousas, in the parish of St. Landry, and state of Louisiana, charging William C. Walters with kidnapping Robert Dunbar, Jr., a boy five years of age. The offense was alleged to have been committed on August 23, 1912. A warrant of arrest was immediately issued by the city judge, and on the same day application for requisition was made to the Governor of Louisiana. On April 23, 1913, the Governor of Louisiana issued his requisition to the Governor of Mississippi. Therein the charge against relator is shown, and it is alleged that he has filed from the state of Louisiana and taken refuge in the state of Mississippi, and demand is made that he be apprehended and delivered to the authorized agent of Louisiana. On June 8, 1913, the Governor of Mississippi, in response to the requisition upon him by the Governor of Louisiana, issued a warrant for the arrest of relator and his delivery into the custody of the agent of the state of Louisiana.

All of the papers above referred to are fully presented in the record. They are regular in form and sufficient.

In his petition for writ of habeas corpus, filed June 18, 1913, relator alleged that he had not violated any criminal law of the state of Louisiana, was not in the state at the time when the offense was charged to have been commited, was not a fugitive from justice of that state, and was unlawfully imprisoned and restrained of his liberty. He also alleged that there was then pending against him in Marion county, Miss., an

affidavit charging him with the offense of kidnapping in the state of Mississippi, and that he was not subject to be returned to the state of Louisiana for trial because he was being held to answer for the alleged violation of the criminal laws of Mississippi. The agent of the state of Louisiana, replying to the writ of habeas corpus, denied the right of relator to the writ, and presented with his reply all the proceedings leading up to the issuance of the warrant as herein referred to. Thereupon relator filed a rejoinder to the reply of the agent of Louisiana, in which he alleged that the Governor of Mississippi did not pass "upon the question of whether or not W. C. Walters was, at the time of the commission of the offense alleged, present in the state of Louisiana and afterwards filed from the state of Louisiana," and he filed with his rejoinder a copy of a paper which he claims is a written opinion of the Governor of Mississippi. The case then proceded to trial, and relator introduced a number of witnesses whose testimony showed that he was in Mississippi on and about the time when the kidnapping was charged to have taken place in Louisiana. Testimony introduced by the agent of Louisiana, the demanding state, showed that relator, W. C. Walters, was in Louisiana on and about the time when the child was kidnapped, and that he was seen near the place where the child disappeared on the 24th of August, 1912, being the next day after the disappearance.

The interstate extradition of criminals is

governed by the laws of the United States. The federal Constitution and statutes must be looked to for authority in extradition matters. Clause 2 of section 2 of article 4 of the Constitution of the United States reads: "A person charged in any state with treason, felony, or other crime, who shall flee from justice, and be found in another state, shall on demand of the executive authority of the state from which he fled, be delivered up to

be removed to the state having jurisdiction of the crime." Following this constitutional provision is section 5278 of the Federal Revised Statutes (U. S. Comp. St. 1901, p. 3597), which is as follows: "Whenever the executive authority of any state or territory demands any person as a fugitive from justice, of the executive authority of any state or territory to which such person has fled, and produces a copy of an indictment found or an affidavit made before a magistrate of any state or territory, charging the person demanded with having committed treason, felony, or other crime, certified as authentic by the Governor or chief magistrate of the state or territory from whence the person so charged has filed, it shall be the duty of the executive authority of the state or territory to which such person has fled to cause him to be arrested and secured, and to cause notice of the arrest to be given to the execu

the agent of such authority appointed to receive the fugitive, and to cause the fugitive to be delivered to such agent when he shall appear. If no such agent appears within six months from the time of the arrest, the prisoner may be discharged. All costs or expenses incurred in the apprehending, secur. ing, and transmitting such fugitive to the state or territory making such demand, shall be paid by such state or territory."

The state can prescribe proceedings and provide adequate means and facilities for the purpose of carrying into effect extraditions. This is done by the state of Mississippi by section 2378 of the Code of 1906, which reads: "It shall be the duty of the Governor, on demand made by the executive authority of any other state, territory, or district, for any person charged, on affidavit or indictment, in such other state, territory, or district, with a criminal offense, and who shall have fled from justice, and be found in this state, the demand being accompanied with a copy of the affidavit or indictment, certified as authentic by such executive authority, to cause the offender to be arrested and delivered up to the authority of such state, territory or district, for removal to the jurisdiction having cognizance of the offense, upon payment of the costs and expenses consequent on arrest; and it shall be the duty of the Governor to demand and receive fugitives from justice for offenses committed in this state."

It will be seen that the affidavit charging relator with the crime of kidnapping, duly authenticated by the executive authority of Louisiana, and, in truth, all papers leading up to the requisition, accompanied the de mand for the extradition of W. C. Walters. It is the purpose of the federal and state statutes to provide a means for bringing back to the state where the crime has been committed a person charged with such crime, who has fled from justice, to be there dealt

with according to law.

[1] When the executive authority of the state where the law has been violated makes a demand in accordance with the statutes the offender has fled, as has been done in the upon the executive of the state into which Constitution and laws, "the duty of the execcase at bar, it becomes, under the federal utive of the state where the fugitive is found to cause him to be arrested, surrendered, and delivered to the appointed agent of the demanding state to be taken to that state." People ex rel. McNichols v. Pease, 207 U. S. 100, 28 Sup. Ct. 58, 52 L. Ed. 121.

[2] However, it is incumbent upon the executive to assure himself that the accused is a fugitive from justice. He may insist upon proof, but the character of such proof is not prescribed. The responsibility of ascertaining in some legal manner whether the accused is a fugitive from justice of the demanding state rests upon him. Ex parte Reggel, 114

We take the following from the case of McNichols v. Pease, supra: "Nevertheless, the executive upon whom such demand is made, not being authorized by the Constitution and laws of the United States to cause the arrest of one charged with crime in another state unless he is a fugitive from justice, may decline to issue an extradition warrant, unless it is made to appear to him, by competent proof, that the accused is substantially charged with crime against the laws of the demanding state and is in fact a fugitive from the justice of that state. Whether the alleged criminal is or not such fugitive from justice may, so far as the Constitution and laws of the United States are concerned, be determined by the executive upon whom the demand is made in such way as he deems satisfactory, and he is not obliged to demand proof, apart from proper requisition papers from the demanding state, that the accused is a fugitive from justice. If it be determined that the alleged criminal is a fugitive from justice, whether such determination be based upon the requisition and accompanying papers in proper form, or after an original, independent inquiry into the facts, and if a warrant of arrest is issued after such determination, the warrant will be regarded as making a prima facie case in favor of the demanding state and as requiring the removal of the alleged criminal to the state in which he stands charged with crime, unless in some appropriate proceeding it is made to appear that he is not a fugitive from the justice of the demanding state."

to be taken as a fugitive from the justice of the state in which he is found to the state whose laws he is charged with violating. One arrested and held as a fugitive from justice is entitled of right, upon habeas corpus, to question the lawfulness of his arrest and imprisonment, showing by competent evidence, as a ground for his release, that he was not, within the meaning of the Constitution and laws of the United States, a fugitive from the justice of the demanding state, and thereby overcoming the presumption to the contrary arising from the face of an extradition warrant."

[5] The record before us discloses contradictory evidence as to the presence in or absence from Louisiana of W. C. Walters when the crime is alleged to have been committed. We cannot say, therefore, that there was any error by the trial court in sustaining the Governor in his issuance of his warrant livered to the authorized agent of the state and in deciding that Walters should be deof Louisiana. In the case of Munsey v. Clough, 196 U. S. 364, 25 Sup. Ct. 282, 49 L. Ed. 515, it was decided that: "Contradictory evidence on the question of the presence or absence of the accused in the state at the

time of the commission of the offense will not require his discharge on habeas corpus to review the issuance of a warrant of arrest in interstate extradition proceedings." Mr. Justice Peckham, delivering the opinion of the court, said: "The court will not discharge a defendant arrested under the Gov

tradictory evidence on the subject of presence in or absence from the state, as habeas corpus is not the proper proceeding to try the question of alibi, or any question as to the guilt or innocence of the accused."

[3] We decide in this case that the extra-ernor's warrant where there is merely condition papers are in proper form and show that relator is substantially charged with crime against the laws of Louisiana, from whose justice he is alleged to have fled. The executive of Mississippi may then have based his determination to issue warrant upon the requisition and accompanying papers, or he may have decided after an orig-lication shows that the Governor of Missisinal, independent inquiry into the facts. His issuance of the warrant makes a prima facie case in favor of the demanding state. Ex parte Edwards, 91 Miss. 621, 44 South. 827; Ex parte Devine, 74 Miss. 715, 22 South. 3.

It is contended by appellant that the writing made Exhibit A to his rejoinder or rep

sippi did not pass upon the question of appellant's being a fugitive from justice. The record does not show that this paper was any part of the Governor's decision in the case. Nor do we see that it was any way connected with the warrant issued. It can have no effect in this consideration. The warrant clearly sets forth the information obtained by the Governor and his conclusion. We quote therefrom: "Whereas, his excellency the Governor of the state of Louisiana, has made known to me that W. C. Walters stands charged with having commited the crime of kidnapping, in the parish of St. Landry, Louisiana, and whereas it appears that said W. C. Walters has tied from justice, and is to be found in the state of Mississippi, where he has taken refuge."

[4] While a prima facie case is made in favor of extradition, still habeas corpus proceedings may be resorted to, for the purpose of determining whether the accused is subject to be returned to the demanding state as a fugitive from justice. This seems fully settled in the case of McNichols v. Pease, supra. Mr. Justice Harlan, delivering the opinion of the court, stated that certain principles, which he set forth, and from which we have quoted above, are deduced from the cases already decided by the Supreme Court of the United States, all of which he cited. We quote further from his opinion as [6] The contention by appellant in his petifollows: "A proceeding by habeas corpus in tion that he should not be delivered to Louia court of competent jurisdiction is appro- siana for trial, because he was charged with priate for determining whether the accused | the same offense in Mississippi and was held

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