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COMMONWEALTH EX REL. EDGAR v. DAVIS (04/18/67)

decided: April 18, 1967.

COMMONWEALTH EX REL. EDGAR, APPELLANT,
v.
DAVIS



Appeal from order of Court of Common Pleas of Allegheny County, July T., 1966, No. 3176, in case of Commonwealth ex rel. Kenneth Edgar v. William H. Davis, Sheriff.

COUNSEL

Herbert B. Lebovitz, with him Lebovitz & Lebovitz, for appellant.

Edwin J. Martin and Charles B. Watkins, Assistant District Attorneys, and Robert W. Duggan, District Attorney, for appellee.

Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Chief Justice Bell.

Author: Bell

[ 425 Pa. Page 134]

Relator, Kenneth Edgar, filed a petition for a writ of habeas corpus in the Court of Common Pleas of Allegheny County pursuant to the provisions of § 10 of the Uniform Criminal Extradition Act,*fn* to test the legality of his arrest and extradition to the State of South Dakota.

On May 2, 1966, the Governor of South Dakota pursuant to the Uniform Criminal Extradition Act transmitted to the Governor of the Commonwealth of Pennsylvania a Requisition for Extradition of Kenneth Edgar to South Dakota authorities. The form of the Requisition for Extradition complied with all the requirements of § 3 of the Extradition Act, 19 P.S. § 191.3. The Governor of Pennsylvania thereupon issued his warrant for the arrest and extradition of (a person named) Kenneth Edgar and the relator, whose name is Kenneth Edgar, was arrested on April 15, 1966, in Allegheny County.

Relator was charged with the crime of obtaining property under false pretenses, which is a violation of § 13.4202 of the South Dakota Code of 1939. The property which was ordered by telephone was loaded into a car by a person who called himself Kenneth Edgar and taken away and never paid for or returned.

On July 7, 1966, a hearing was held in the habeas corpus proceeding and after this hearing the Court below denied relator's petition. From the Order of the lower Court, Edgar took this appeal.

Relator contends that he cannot lawfully be detained or extradited because (1) he was not present in

[ 425 Pa. Page 135]

South Dakota at or during the time the alleged crime was committed; and (2) he was not identified at the habeas corpus hearing as the Kenneth Edgar named in the South Dakota Requisition for Extradition. Relator is entitled to raise the issue of whether he was in South Dakota at the time the alleged crime was committed. In Commonwealth ex rel. Raucci v. Price, 409 Pa. 90, 185 A.2d 523, we said (page 95): "Our scope of review in extradition cases is restricted. By the terms of the Uniform Criminal Extradition Act of July 8, 1941, P. L. 288, § 1 et seq., 19 P.S. § 191.1 et seq., the courts of an asylum state may not determine the guilt or innocence of the party sought to be extradited. The courts of an asylum state will order extradition only if (1) the subject of the extradition is charged with a crime in the demanding state; (2) if the subject of extradition is a fugitive from the demanding state; (3) if the subject of the extradition was present in the demanding state at the time of the commission of the crime; and (4) if the requisition papers are in order. All of these elements must be present: Commonwealth ex rel. Pacewicz v. Turley, 399 Pa. 458, 160 A.2d 685; Commonwealth ex rel. Dronsfield v. Hohn, 390 Pa. 434, 135 A.2d 757; Commonwealth ex rel. Hatton v. Dye, 373 Pa. 502, 96 A.2d 127; Commonwealth ex rel. Henderson v. Baldi, 372 Pa. 463, 93 A.2d 458."

South Dakota's Requisition for Extradition, with its accompanying affidavit, clearly alleges all of the aforesaid requisites of the Extradition Act. The allegations of the requisition and the accompanying affidavit must be accepted as prima facie true. Commonwealth ex rel. Raucci v. Price, 409 Pa., supra; Commonwealth ex rel. Taylor v. Superintendent, Philadelphia County Prison, 382 Pa. 181, 114 A.2d 343; Commonwealth ex rel. Crist v. Price, 405 Pa. 384, 175 ...


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