Larimer v. De Motte
Before: Shaw
Synopsis
Fugitives from Justice—Escape After Arrest in Sister State—Expenses of Agent Employed Under Extradition Kequisition.— The amendment of 1913 to section 1557 of the Penal Code, providing that the state shall not pay the expenses of any person employed under a requisition from the Governor to bring back from a sister state a fugitive from justice, “where the fugitive returned is not placed on trial,” was intended to bo restricted to eases of failure to prosecute a fugitive after he has been returned to this state, and has no application to the case of a fugitive who makes his escape in the state where he is apprehended, by reason of which fact the state agent is unable to return Mm to the state for trial.
[600]
SHAW, J.
These appeals involve like questions, namely: Whether the state is chargeable with the expense incurred by an agent thereof who, acting under a requisition issued by the Governor, was authorized to receive in custody a fugitive from justice found in a sister state and return him to this state for trial.
It appears in each case that after his arrest the fugitive sued out a writ of
habeas corpus
in the court of the state where he was apprehended and by such court was released on bail. Pending the hearing of the writ he made his escape, by reason of which fact the state’s agent was unable to return him to this state for trial.
In each of the cases the appeal is from an order granting a peremptory writ of mandate commanding the board of control to audit and allow the claim against the state for the expenditures made by petitioner’s assignor in performance of the duties imposed upon him as such agent under the requisition issued by the chief executive.
The solution of the question depends solely upon the interpretation of section 1557 of the Penal Code, the meaning of which, to our minds, is not open to controversy. As it stood prior to 1913, it read as follows: “When the governor of this state, in the exercise of the authority conferred by section 2, article IY of the constitution of the United States, or by the laws of this state, demands from the executive authority of any state of the United States, or of any foreign government, the surrender to the authorities of this state of a fugitive from justice, who has been found and arrested in such state or foreign government, the accounts of the person employed by him to bring back such fugitive must be audited by the board of examiners and paid out of the state treasury. ’ ’ In 1913 the section was amended by adding thereto the following: “Provided, however, that the state shall not pay the expenses of any such person so employed where the fugitive returned is not placed on trial, but such expense shall be a charge upon the county asking the requisition:”
As the law stood prior to the amendment, appellants concede petitioner would be entitled to the allowance, but contend that the- intent of the legislature was to “place a restriction on the use of extradition process by a county so as to require the county to pay the expenses incurred in eon
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