S. B. Klovsky, Gerber & Galfand, Philadelphia, for appellant.
James W. Tracey, Jr., First Assistant District Attorney, John H. Maurer, District Attorney, Philadelphia, for appellee.
Before Rhodes, P. J., and Hirt, Reno, Dithrich, Ross, and Fine, JJ.
[ 166 Pa. Super. Page 323]
This is a habeas corpus proceeding to secure the release of Fletcher Mills, appellant, held by virtue of an extradition warrant issued on April 22, 1949, by the Governor of this Commonwealth upon a requisition for extradition by the Governor of the State of Alabama. The relator was indicted on a charge of assault with attempt to commit murder in Tuscaloosa County, Alabama. On August 5, 1949, the relator filed his petition for a writ of habeas corpus averring that if he is returned to Tuscaloosa County his life will be in danger and he will probably meet death by mob violence; that he will be so terrorized that he will be unable to make a valid defense to the criminal charges; and that he will not receive a fair and impartial trial in the courts of the demanding state. The court below, after two hearings, dismissed the writ and the relator was remanded to jail. He now appeals contending that (1) there is substantial evidence to show a present danger of lynching, sufficiently strong to bar extradition, and (2) the court below abused its discretion in refusing his motion for a continuance.
An appeal from an order of the court in his habeas corpus proceeding is in the nature of a certiorari. The scope of appellate review is, therefore, definitely limited and our inquiry may be directed only to whether the court below had jurisdiction of the subject matter and whether the proceedings are regular and in conformity
[ 166 Pa. Super. Page 324]
with law. Commonwealth ex rel. Mattox v. Supt. of County Prison, 152 Pa. Super. 167, 170, 31 A.2d 576; Commonwealth ex rel. Flower v. Supt. of Philadelphia County Prison, 220 Pa. 401, 408, 69 A. 916, 21 L.R.A.,N.S., 939; Commonwealth ex rel. Bucksbarg v. Good, 162 Pa. Super. 557, 560, 58 A.2d 842. It is clear that the lower court had jurisdiction under § 10 of the Uniform Criminal Extradition Act of July 8, 1941, P.L. 288, 19 P.S. § 191.10, which specifically provides for a hearing by the court in a habeas corpus proceeding when brought by an alleged fugitive to test the legality of his arrest.
That leaves for consideration the question whether the order dismissing the writ is supported by substantial competent evidence. If it is, the order must be affirmed. Cf. Commonwealth ex rel. Flower v. Supt. of County Prison, supra; Revocation of Mark's License, 115 Pa. Super. 256, 263, 176 A. 254; Commonwealth ex rel. Johnson v. Dye, 159 Pa. Super. 542, 49 A.2d 195. However, neither this Court, on review, nor the court below may inquire into the guilt or innocence of the accused. That is solely the function of the court of the demanding state having jurisdiction of the information, indictment, etc. Commonwealth ex rel. Bucksbarg v. Good, supra.
The initial hearing was held on August 12, 1949, at which time the executive warrant and the requisition in the extradition proceeding were introduced into evidence. This made out a prima facie case. Commonwealth ex rel. Davis v. Dye, 161 Pa. Super. 74, 76, 53 A.2d 750. Relator's identity as the person wanted by the demanding state was established by the testimony of Sheriff Hartranft of Tuscaloosa County. The prosecuting attorney of that county testified that if relator were returned he would receive a 'perfectly fair trial.' The relator was present in court but did not testify in his own behalf.
[ 166 Pa. Super. Page 325]
Counsel for relator then moved for a one week continuance for the purpose of obtaining as witnesses, an investigator familiar with southern Negro problems and relator's sister, to show that relator would be subjected to mob violence and possible lynching if returned to Alabama. The motion was denied by the court on the ground that a lapse of almost four months from the date the warrant was issued to the date of hearing rendered a further continuance unreasonable. The court then refused the writ whereupon relator obtained an order from our ...