1. The question whether a person arrested for interstate
rendition should be delivered to the demanding state or should be
released upon the ground that, by clear evidence he has shown his
absence from that state when the crime was committed and
consequently that he is not a fugitive from justice, is a question
of federal right which, when raised in a court of the arresting
state, should be decided under Art. IV, § 2, par. 2 of the
Constitution and § 5278 R.S., 18 U.S.C. 662, as construed by this
Court. P. 289 U. S.
2. A person who has been arrested in one state under
Constitution, Art. IV, § 2, par. 2, R.S., § 5278, 18 U.S.C. 662, as
a fugitive from justice and who seeks discharge by habeas corpus
upon the ground that he was not in the demanding state at the time
of the alleged crime, has the burden of proving the alibi beyond a
reasonable doubt; if the evidence is conflicting, he should not be
released. P. 289 U. S.
3. The habeas corpus proceeding is in no sense a criminal trial,
and if the evidence of alibi is suspicious, the judge may well
require the prisoner to submit to examination also and to show what
effort has been made to secure the presence of important witnesses.
P. 289 U. S.
203 N.C. 362, 166 S.E. 165, reversed.
Certiorari to review the affirmance of a judgment of discharge
in habeas corpus.
Page 289 U. S. 414
MR. JUSTICE McREYNOLDS delivered the opinion of the Court.
Sunday night, May 1, 1932 (probably about 10:30 Eastern time),
Hunt, a police officer, was murdered on a well lighted street in
Greenville, South Carolina. An affidavit by policeman Corea, May
5th, before a local magistrate charged Ray Bailey, respondent here,
with the crime. As provided by the federal statute, demand was made
upon the Governor of North Carolina for delivery of the accused as
a fugitive from justice. Bramlett and Hammond were designated as
agents to bring him back.
This requisition was promptly honored, and a warrant issued
directing officers in North Carolina to arrest respondent,
"afford him such opportunity to sue out a writ of habeas corpus
as is prescribed by the laws of this state and to thereafter
deliver him into the custody of the said C. R. Bramlett and L. W.
Hammond, to be taken back to the said state, from which he
June 7th, acting as commanded, the sheriff of Jackson County
took him into custody. He at once obtained a writ of habeas corpus
from the local superior court. His petition therefor alleged
illegality of custody
"for that the defendant is charged with an offense in the State
of South Carolina, to-wit, the murder of A. B. Hunt, on or about
the 1st day of May, 1932, when at which time, this affiant was in
the State of North Carolina, and was not in the State of South
The sheriff, in his return to the writ, alleged that Bailey
"is being legally and lawfully held in custody after having been
arrested on a warrant of extradition issued by the Governor of
North Carolina on the 9th day of May, 1932, upon requisition for
same by the Governor of South Carolina, on and for a charge of
murder alleged to have been committed in the South Carolina, said
Page 289 U. S. 415
of extradition having been duly executed by me on the said Ray
Bailey, alias Ray Keith, on the 7th day of June, 1932."
The judge of the Superior Court sitting at Sylva, N.C., heard
the cause June 27, 1932. A number of affidavits were received
without objection, and thirty or more witnesses were examined in
open court. At the conclusion of the testimony, the judge
"Gentlemen, I think there has been an issue raised here I don't
think I have a right to pass on -- that of identity -- and at the
same time, I don't think it would be fair to the defendant to send
him to South Carolina to stand a trial, as it would be very
expensive to him and his folks; under the testimony, I don't think
there would be a jury anywhere that would ever find him guilty
beyond a reasonable doubt. I shall therefore discharge him under
the writ and let him go."
This formal judgment followed:
"1. That Ray Bailey (alias Ray Keith) is a citizen and resident
of the State of North Carolina."
"2. That he is not a fugitive from justice from the State of
South Carolina, and was not present at the time of the commission
of the alleged crime at Greenville, South Carolina."
"3. That the State of South Carolina has failed to show probable
cause for holding the said Ray Bailey in custody, or that he
committed the alleged crime, the murder of A. B. Hunt, and has
failed to produce sufficient evidence to warrant the Court in
refusing the Writ, and the Court finding from all the evidence
introduced in this cause that the petitioner is entitled to the
relief sought in his petition and the Writ of Habeas Corpus; . .
"It is therefore upon motion . . . considered, ordered, decreed
and adjudged by the Court that the petition and Writ be allowed and
that the defendant be and he is hereby released from custody. "
Page 289 U. S. 416
The Supreme Court of North Carolina reviewed the cause upon
certiorari under title "In the matter of Ray Bailey alias Ray
Keith." It affirmed the challenged judgment and, among other
things, said (203 N.C. 362, 166 S.E. 165, 167):
"In the case at bar, a controversy of fact arose between the
contending parties -- that is, the demanding state and the prisoner
-- as to whether the prisoner was in the demanding state at the
time the alleged offense was committed. The writ of habeas corpus
was created and fashioned for the express purpose of determining
such controverted fact. The statute and public policy require that
such fact be determined in a summary manner. Doubtless, in given
cases, different minds would work out diverse conclusions, but,
after all, it is perhaps wise that the determination of the
ultimate fact should be lodged in the sound legal discretion of an
impartial judge, commissioned by the law of the land and the
inherent sense of the responsibility of his high office 'to do what
to justice appertains.' He hears the witnesses and observes their
mental leanings or bias toward the question involved. He senses the
atmosphere of the case. Moreover, it would doubtless be a dangerous
experiment to undertake by a judicial decree of an appellate court
to prescribe a legal strait-jacket for such matters."
"Exercising the power delegated by statute and supported in
principle by the decisions of this state, the hearing judge found
certain facts and set them forth in his judgment. The last inquiry
in the solution of the appeal is: what is the effect of the
findings of fact set out in the judgment? Whatever may be the
variable conclusions reached by other courts, that inquiry is
settled in North Carolina. The law is thus stated:"
"The findings of fact made by the judge of the Superior Court,
found, as they are, upon competent evidence, are also conclusive on
us . . .
Page 289 U. S. 417
and we must therefore base our judgment upon his findings, which
amply sustain his order."
"In re Hamilton,
182 N.C. 44, 108 S.E. 385, 386.
See also Clegg v. Clegg,
186 N.C. 28, 118 S.E. 824; In
200 N.C. 133, 156 S.E. 791."
The matter is here on certiorari.
No question is raised concerning the form or adequacy of the
writ issued by the Governor of North Carolina.
Bailey was in lawful custody and upon him
rested the burden of overcoming this presumption by proof.
McNichols v. Pease, 207 U. S. 100
207 U. S.
This he undertook to do. His own affidavit positively asserted
his presence in North Carolina when the alleged crime occurred. He
narrated his movements, all within that state, from Sunday morning,
May 1st, when he was at Asheville (north of Greenville, S.C.
sixty-one miles over a well paved highway) until 5:30 o'clock
Monday morning, when he entered the hospital at Sylva, N.C., fifty
miles southwest of Asheville (a paved highway connects these towns)
under an assumed name. A number of affidavits and the testimony of
several witnesses given in open court tend to support his
He claimed that he left Asheville about dark Sunday night, May
1st, in a car with a friend with whom he had been drinking and
gambling during the afternoon; both were under the influence of
alcohol; they were going towards Bailey's home in Yancey County; at
a point on the roadside some twenty-five miles north of Asheville,
between 10 and eleven o'clock, p.m. (Central time) this friend,
after shooting him, left him on the roadside; shortly thereafter,
two strangers appeared, put him in their car and carried him to his
brother's house in Asheville; from there, an ambulance conveyed him
to the hospital, fifty miles away, where he gave an assumed
The doctors found two bullets had passed through his body; also
that a bullet had wounded his right hand at the base of the
Page 289 U. S. 418
Although present in court at the hearing, Bailey did not take
the stand, and several persons who probably could have thrown much
light upon the issue were neither called nor accounted for. Among
these were the respondent's friend who shot him, the brother to
whose house at Asheville respondent was taken, two women said to
have been there, and the doctor who there dressed his wounds. Other
important witnesses made ex parte
Such a tale should have been subjected to rigid scrutiny. The
hearing was in no sense a criminal trial, and the judge would have
been well advised if he had demanded that the prisoner present
himself for examination; also should show what effort had been made
to secure the presence of important witnesses in order that they
might be questioned. Viewed as a whole, the evidence for respondent
leaves much to be desired; certainly it is unsatisfactory. If true,
it supports the conclusions of the judge that Bailey had not fled
from the justice of South Carolina.
On the other hand, the demanding state presented three witnesses
-- police officers Corea and Singleton and a merchant -- residents
of Greenville, S.C., who identified Bailey and positively asserted
that, in their presence, he shot officer Hunt about 10:30 Sunday
night, May 1st. They had never seen Bailey until he suddenly
appeared and commenced to shoot. The officers gave a circumstantial
account of the homicide, declared they were within a few feet of
the assailant, shot at him nine times after he had fatally wounded
Hunt, and thought they wounded him in the body and right hand. They
further said that, during the melee, an automobile stopped nearby
and its occupants shot at them many times. The culprit finally
entered and escaped in that car. The whole affray continued for
only a very short time -- a few moments.
While some circumstances tend to support these statements, they
are not free from doubt. If true, Bailey was a fugitive.
Page 289 U. S. 419
The record presents an irreconcilable conflict of evidence. It
is not possible to say with certainty where the truth lies.
The rights of the parties depend upon the proper construction
and application of Art. IV, § 2, par. 2, of the Federal
Constitution [Footnote 1
] and §
5278, R.S. (U.S.Code, Tit. 18, § 662) [Footnote 2
] derived from the Act of February 12, 1793.
The demanding state asserted a right to the custody of the
respondent under the Federal Constitution and statute. He claimed
that these impliedly forbade his surrender, since the evidence made
it clear that he was beyond the limits of South Carolina at the
time of the homicide, and therefore was not a fugitive from the
justice of that state.
Page 289 U. S. 420
These questions of federal right were properly submitted for
consideration by the state court upon the return to the writ of
habeas corpus. And it was the duty of that court to administer the
law prescribed by the Constitution and statute of the United
states, as construed by this Court. Second Employers' Liability
Cases, 223 U. S. 1
223 U. S. 55
Cincinnati, New Orleans & Texas Pacific Ry. Co. v.
Rankin, 241 U. S. 319
241 U. S.
In effect, the matter for determination was whether the accused
appeared to be held contrary to the Federal Constitution and laws.
The ultimate question of his guilt or innocence of the charge of
murder preferred against him did not arise, the sole point for
decision related to his absence from the state of South Carolina at
the time of the crime. It was wholly beyond the province of the
judge to speculate, as he seems to have done, concerning the
probable outcome of any trial which might follow rendition to the
demanding state. The circumstances require this Court to search the
record and determine for ourselves whether upon the facts presented
the courts below reached the proper conclusion.
The applicable provision of the Federal Constitution and of the
statute intended to supplement it have often been considered here.
Some of the more important cases are collected in the margin.
In Munsey v. Clough, 196 U. S. 364
196 U. S. 375
through Mr. Justice Peckham, this Court said:
"When it is conceded, or when it is so conclusively proved that
no question can be made, that the person was not within the
demanding state when the crime is said to have been committed,
Page 289 U. S. 421
his arrest is sought on the ground only of a constructive
presence at that time in the demanding state, then the court will
discharge the defendant. Hyatt v. Corkran, 188 U. S.
, affirming the judgment of the New York Court of
Appeals, 172 N.Y. 176, 64 N.E. 825. But the court will not
discharge a defendant arrested under the governor's warrant where
there is merely contradictory evidence on the subject of presence
in or absence from the state, as habeas corpus is not the proper
proceeding to try the question of alibi, or any question as to the
guilt or innocence of the accused."
Speaking for the Court in McNichols v. Pease,
207 U. S. 100
207 U. S. 112
Mr. Justice Harlan said:
"When a person is held in custody as a fugitive from justice
under an extradition warrant, in proper form, and showing upon its
face all that is required by law to be shown as a prerequisite to
its being issued, he should not be discharged from custody unless
it is made clearly and satisfactorily to appear that he is not a
fugitive from justice within the meaning of the Constitution and
laws of the United states. We may repeat the thought expressed in
Appleyard's case, above cited, that a faithful, vigorous
enforcement of the constitutional and statutory provisions relating
to fugitives from justice is vital to the harmony and welfare of
the states, and that,"
"while a state should take care, within the limits of the law,
that the rights of its people are protected against illegal action,
the judicial authorities of the Union should equally take care that
the provisions of the Constitution be not so narrowly interpreted
as to enable offenders against the laws of a state to find a
permanent asylum in the territory of another state."
Considering the Constitution and statute and the declarations of
this Court, we may not properly approve the discharge of the
respondent unless it appears from the record that he succeeded in
showing by clear and satisfactory evidence that he was outside the
limits of South
Page 289 U. S. 422
Carolina at the time of the homicide. Stated otherwise, he
should not have been released unless it appeared beyond reasonable
doubt that he was without the State of South Carolina when the
alleged offense was committed, and, consequently, could not be a
fugitive from her justice.
The record discloses only a conflict of evidence; the
requirement which we have indicated has not been met, and the
challenged judgment must be reversed.
The cause will be remanded to the Supreme Court of North
Carolina for further proceedings not inconsistent with this
MR. JUSTICE BRANDEIS and MR. JUSTICE BUTLER are of the opinion
that the evidence, while possibly sufficient to sustain, does not
require, a finding that there is probable cause to believe that the
accused was a fugitive from South Carolina, and therefore this
Court is not warranted in reversing the judgment of the Supreme
Court of North Carolina.
"A person charged in any state with Treason, Felony, or other
Crime, who shall flee from Justice, and be found in another State,
shall on Demand of the executive Authority of the State from which
he fled, be delivered up to be removed to the state having
Jurisdiction of the Crime."
Rev.Stats. § 5278.
"Whenever the executive authority of any State or Territory
demands any person as a fugitive from justice, of the executive
authority of any State or Territory to which such person has fled,
and produces a copy of an indictment found or an affidavit made
before a magistrate of any State or Territory, charging the person
demanded with having committed treason, felony, or other crime,
certified as authentic by the governor or chief magistrate of the
State or Territory from whence the person so charged has fled, it
shall be the duty of the executive authority of the State or
Territory to which such person has fled to cause him to be arrested
and secured, and to cause notice of the arrest to be given to the
executive authority making such demand, or to the agent of such
authority appointed to receive the fugitive, and to cause the
fugitive to be delivered to such agent when he shall appear. If no
such agent appears within six months from the time of the arrest,
the prisoner may be discharged. All costs or expenses incurred in
the apprehending, securing, and transmitting such fugitive to the
State or Territory making such demand shall be paid by such State
24 How. 66; Ex parte Reggel,
114 U. S. 643
Roberts v. Reilly, 116 U. S. 80
Hyatt v. New York ex rel Corkran, 188 U.
; Munsey v. Clough, 196 U.
; Appleyard v. Massachusetts,
203 U. S. 222
McNichols v. Pease, 207 U. S. 100
Drew v. Thaw, 235 U. S. 432
Innes v. Tobin, 240 U. S. 127
Biddinger v. Commissioner of Police, 245 U.