[45 Del. 424] The petitioner, Thomas R. Simpers, was committed to the New Castle County Workhouse on April 25, 1950 to be held for the Court of General Sessions. While in New Castle County Workhouse, a warrant of detainer, dated April 25, 1950, was lodged against him by the State of Virginia. The petitioner refused to waive extradition.
On June 7, 1950, a nolle prosequi was entered on the charges pending against the petitioner in Delaware, but the petitioner was not released from custody.
On June 8, 1950, the petitioner was taken before a Magistrate of this county. Pursuant to the provisions of Section 5337, R.C. 1935, the Deputy Warden of the New Castle County Workhouse made an affidavit stating that the petitioner was charged with the commission of an offense against the laws of the State of Virginia and a fugitive warrant was issued. The petitioner was thereupon committed to the New Castle County Workhouse with directions that he was to be released to the authorities of the State of Virginia.
The affidavit made by the Deputy Warden of the New Castle County Workhouse was based upon the warrant issued by the State of Virginia for the arrest of the petitioner on a charge of breaking and entering. The warrant so issued and in the hands of the authorities of the State of Delaware was valid on its face.
The petitioner filed his petition for a writ of habeas corpus and a rule was issued returnable June 21, 1950, at which time the petitioner was admitted to bail. At the same time, it was made clear that if no extradition hearing on the application of Virginia had been held prior to June 30, 1950, an application for discharge under the petition would be entertained.
[45 Del. 425] The following opinion was later filed.
Stephen E. Hamilton, Jr., of Wilmington, for the petitioner.
Joseph H. Flanzer, Dep. Atty. Gen., for the respondent.
The arrest of fugitives from other states has been before the Court of General Sessions only once--in 1847 in the case of State ex rel. Adams v. Buzine, 4 Harr. 572. After considering at length the right of one state to hold a fugitive from another pending extradition, Chief Justice Booth concluded that, in the absence of a permitting statute, any Magistrate of this state, upon probable cause supported by affidavit, had the power to issue a warrant to arrest a fugitive suspected of having committed a crime in another state, in advance of a demand from that state for extradition of the fugitive. After such arrest, the Magistrate was then required to hold a hearing. If proof of the party having committed the offense ws offered which would have been sufficient to put him on trial, it thereupon became the duty of the Magistrate to commit him to prison for such reasonable time as would allow notice to be given the executive of the demanding state so that demand for extradition could be made in accordance with the law.
It is to be noted that the rule of State ex rel. Adams v. Buzine required a hearing by the Magistrate after the arrest of the fugitive, and authorized a commitment only when a prima facie case by competent evidence had been made out against the fugitive.
The rule of State ex rel. Adams v. Buzine continued to be the rule applied by the courts of this state until the passage of an act in relation to requisition of fugitives from justice on March 9, 1883, 17 Del. Laws, c. 223. Sections 4 and 5 of this act are presently found in our law as Sections 5337 and 5338, R.C. 1935. These two sections of the 1935 Code adopt the rule of State ex rel. Adams v. Buzine for the arrest of fugitives from other states with one exception. Section 5338 provides that when a fugitive[45 Del. 426] is so arrested, he shall be brought before the officer who issued the warrant, who shall thereupon hear and examine the charge and, 'upon proof by him adjudged to be sufficient,' shall commit the fugitive to jail.
The effect of Section 5338 is to dispense with the requirement of proof of a prima facie case against the fugitive. It is obvious that the practical necessities of detention of fugitives from other states preclude proof before the committing Magistrate of a prima facie case since that would entail the bringing of witnesses from long distances. The intent of this section, therefore, seems clearly to be that upon showing of reasonable probability of the fugitive having committed an offense within another state, he shall be committed in order to afford that state opportunity to institute proceedings for his extradition.