Appeal, No. 89, March T., 1953, from order of Court of Common Pleas of Allegheny County, April T., 1953, No. 1225, in case of Commonwealth of Pennsylvania ex rel. Willie Huey v. Charles L. Dye, Warden, Allegheny County Jail. Order amended and affirmed; reargument refused May 4, 1953
J. Harry Pershing, with him Van A. Barrickman, for appellant.
Albert A. Fiok, Assistant District Attorney, with him James F. Malone, Jr., District Attorney, for appellee.
Before Stern, C.j., Stearne, Jones, Chidsey, Musmanno and Arnold, JJ.
OPINION BY MR. JUSTICE CHIDSEY
The relator in this case was convicted of murder in South Carolina and sentenced to life imprisonment on July 14, 1926. After serving a term of eight years, the relator escaped on June 14, 1934 and proceeded to McKeesport, Pennsylvania and has resided there or in Pittsburgh, Pennsylvania until the present time. On November 17, 1952 the relator was arrested without a warrant in Pittsburgh on the sworn charge of being a fugitive from justice and immediately given a hearing before a magistrate who directed that he be held in custody in the Allegheny County Jail. On November 10, 1952 the Governor of South Carolina had issued an extradition requisition directed to the Governor of Pennsylvania who issued his warrant on November 18, 1952. Thereafter a petition for a writ of habeas corpus
was presented to the Court of Common Pleas of Allegheny County. The relator in support of his petition presented testimony that he was hit on the head with a club by one of two prison guards in South Carolina; that he saw the prisoner next to him killed by the guards; that they gave him $10 and told him to leave. He testified that he then came to McKeesport, Pennsylvania where he obtained employment; that he communicated with these prison guards, and that they were aware of his whereabouts ever since he left South Carolina. After the hearing the prayer for a writ was denied.
In this appeal relator contends that he was not a fugitive from justice; that his arrest without a warrant was a violation of his constitutional rights and that his life would be in danger by his return to South Carolina.
Relator's contention that he was not a fugitive is based upon his testimony that he was released from the prison by the two guards who thereafter knew of his whereabouts from the time of that release in 1934 until his arrest in 1952, and during all of this time no attempt was made to have him extradited. This novel contention is without merit. Relator does not contend that his sentence was invalid. In order to establish the fact that he was not a fugitive as stated in the requisition, the burden was on him to prove (1) that his sentence had been served; or (2) that he had been pardoned or paroled; or (3) a judicial order requiring his release from the South Carolina prison: Cf. Commonwealth ex rel. Bucksbarg v. Good, 162 Pa. Superior Ct. 557, 58 A.2d 842. Relator was unable to show any of these conditions existed. If he was released by prison guards in South Carolina, the guards were guilty of a criminal offense under the laws of that State: The Code of Laws of South Carolina, Vol. 2, Title 16, Sections 232, 233. The right of a state
to extradute a prisoner who has not completed his term of imprisonment or been otherwise released by the duly constituted authorities cannot be ...