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COMMONWEALTH EX REL. THOMAS v. SUPERINTENDENT (02/13/53)

February 13, 1953

COMMONWEALTH EX REL. THOMAS, APPELLANT,
v.
SUPERINTENDENT, PHILADELPHIA COUNTY PRISON



Appeal, No. 93, Jan. T., 1953, from order of Court of Quarter Sessions of Philadelphia County, April Sessions, 1952, Miscellaneous Docket, No. 268, in case of Commonwealth of Pennsylvania ex rel. Taft Thomas v. Superintendent, Philadelphia County Prison. Order reversed.

COUNSEL

Leon Rosenfield, with him John Patrick Walsh, for appellant.

Samuel Dash, Assistant District Attorney, with him Martin Vinikoor, Assistant District Attorney, Michael von Moschzisker, First Assistant District Attorney and Richardson Dilworth, District Attorney, for appellee.

Before Stern, C.j., Stearne, Jones, Bell, Chidsey, Musmanno and Arnold, JJ.

Author: Jones

[ 372 Pa. Page 596]

OPINION BY MR. JUSTICE JONES

The relator appeals from an order of the court below denying his petition for a writ of habeas corpus whereby he sought release from an extradition order of the Governor of Pennsylvania issued upon the requisition of the Governor of Florida.

In early January, 1952, the relator, Thomas, and a friend, one Peter DeMayo (Demeo), both residents of Philadelphia, together drove to Florida. On January 11th, R.J. Priest, a deputy sheriff of Dade County, Florida, visited DeMayo at the latter's request at a motel in Miami where DeMayo and Thomas were sharing a room.DeMayo reported to Priest that during the night, while he slept, some money had disappeared from his trouser pockets. Priest also spoke to Thomas at the time but did not prefer any charges against him. On February 29th, DeMayo made an information against Thomas alleging his theft of the affiant's money on January 10, 1952, for which Thomas was charged with grand larceny. In the meantime Thomas had returned to Philadelphia. On March 7, 1952, the Governor of Florida issued his requisition to the Executive Authority of Pennsylvania demanding Thomas' return to Florida to answer the above-mentioned charge of grand larceny lodged against him there. On March 18th, the Governor of Pennsylvania issued his warrant for the apprehension of Thomas who was promptly taken into custody. A hearing on the extradition was held before a judge of the court below on April 4, 1952. The same day Thomas filed his petition for a writ of habeas corpus; and a hearing thereon was held three

[ 372 Pa. Page 597]

    days later, April 7th. The Florida deputy, Priest, made the identification of the relator as the person demanded by the requisition. The private prosecutor, DeMayo, although present in Philadelphia at the time, was not present at either hearing. The court below denied Thomas the writ prayed for and ordered him turned over to the Florida authorities for extradition to that State but placed him in the custody of his attorney pending an appeal to this Court under Sec. 7 of the Act of May 25, 1951, P.L. 415, 12 PS §§ 1901, 1907.

The appellant contends that the extradition proceeding is invalid for any one of the three following reasons:

(1) The Florida extradition warrant is fatally defective in that it fails to allege, as required by Section 3 of the Uniform Criminal Extradition Act of July 8, 1941, P.L. 288, 19 PS § 191.3, that "the accused was present in the demanding state at the time of the commission of the alleged crime and that thereafter he fled from the state...." See Commonwealth ex rel. Henderson v. Baldi, 372 Pa. 463, 93 A.2d 458.

(2) None of the papers constituting the extradition warrant are "authenticated by the executive authority making the demand" as required by Section 3 of the Uniform Criminal Extradition Act, supra, which, in Section 1, defines the term "executive authority" as including "the Governor and any ...


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