#### Ellis SMITH, Jr. v. STATE.

6 Div. 759.

Court of Criminal Appeals of Alabama.

June 20, 1978.

Rehearing Denied July 25, 1978.

Arthur Parker, Birmingham, for appellant.

William J. Baxley, Atty. Gen., Montgomery and James L. O’Kelley, Asst. Atty. Gen., Birmingham, for appellee.

HARRIS, Presiding Judge.

This is an extradition case. Appellant, in custody pursuant to an extradition warrant issued by the Governor of this State ordering his return to the State of California, sought his release by habeas corpus. After a hearing he was remanded to custody for extradition.

The rendition warrant recites:

> “Whereas, His Excellency, Mervyn M. Dymally, Acting Governor of the State of California, by requisition dated the 24th of October, 1977, has demanded of Me, as Governor of the State of Alabama, the surrender of Ellis Smith, Jr. who, it appears, is charged by Information, Bench Warrant, Affidavits, Certification, Exemplification, in the County of Los Angeles in said State, with the crime of Attempted Robbery & Assault with a Deadly Weapon (a duly certified copy of which Information, Bench Warrant, Affidavits, Certification, Exemplification, accompanies said requisition) and it appearing that said Ellis Smith, Jr. has fled from justice in said State and taken refuge in the State of Alabama.”

The requisition, the rendition warrant and the supporting papers were introduced into evidence by the State.

The requisition from the Acting Governor of the State of California reads, in pertinent part, as follows:

> “To His Excellency the Governor of the State of Alabama:

> “Whereas, it appears by the annexed application for requisition and copies of Information and supporting papers which I certify are authentic and duly authenticated in accordance with the laws of the State of California, that under the laws of this State Ellis Smith, Jr. stands charged with the crime of attempted robbery and assault with a deadly weapon, committed in the County of Los Angeles, in this State, and it has been represented and is satisfactorily shown to me that the accused was present in this State at the time of the commission of said crime and thereafter fled from the justice of this State, and has taken refuge and is now to be found in the State of Alabama;

> “Now, therefore, pursuant to the provisions of the Constitution and laws of the United States, and the laws of the State of Alabama and the laws of the State of California (pursuant to the Uniform Criminal Extradition Act) in such case *1137made and provided, I do hereby respectfully demand that the said Ellis Smith, Jr. fugitive from justice, be arrested and secured and delivered to Wiley Newman and Carlos Bowers who is hereby authorized to receive, convey and transport him to this State, here to be dealt with according to law.”

The requisition is signed by Honorable Mervyn M. Dymally, Acting Governor of the State of California, attested by the Secretary of State, and the Great Seal of that State is affixed thereto.

Upon an examination of the allied papers attached to the requisition, all duly authenticated by the Acting Governor as being in accordance with the laws of the State of California, we find the following documents:

> 1. An Executive Agreement duly signed by the Acting Governor of California and the Governor of Alabama under the Great Seals of California and Alabama and attested by the Secretary of State of California and the Secretary of State of Alabama.

> 2. A Certification of the Secretary of State of the State of California, under the Great Seal of that State, that John J. Corcoran, whose name has been subscribed to the Certificate among the papers annexed to this requisition, is and was at the time of such subscription the duly elected, qualified and acting County Clerk of the California County of Los Angeles and ex officio Clerk of the Superior Court of the State of California, in and for said County;

> That Paul G. Breckenridge, Jr., whose name has likewise been subscribed to said Certificate, is and was at the time of such subscription a duly elected, qualified and Acting Judge of said Superior Court.

> 3. An Application for Requisition duly signed by S. Mayerson, Deputy District Attorney of the County of Los Angeles, State of California, and sworn to before Barbara J. Moore, Deputy County Clerk, to which Requisition was attached copies of the Penal Code of the State of California for the crimes charged against the fugitive, and a photograph of the fugitive.

> 4. Affidavit of Carol L. Willis, Deputy Sheriff of the County of Los Angeles, California, sworn to before Judge Callis-ter, one of the judges of the Superior Court of the County of Los Angeles, California, under the official seal of that Court.

> 5. Affidavit of C. J. O’Connell, a Detective for the Police Department of the City of Inglewood of the County of Los Angeles, California, setting forth the charges pending against the fugitive, sworn to before Paul G. Breckenridge, Jr., Judge of the Superior Court of the State of California for the County of Los Angeles, under the official Seal of that Court.

> 6. Copy of an Information filed in the Superior Court of California for the County of Los Angeles charging as follows:

> “Count I: The said Ronnell Deshon Luck-ey and Ellis Smith, Jr. are accused by the District Attorney of and for the County of Los Angeles, State of California, by this information, of the crime of attempted robbery in violation of Section 664/211, Penal Code of California, a felony, committed as follows: that the said Ronnell Deshon Luckey and Ellis Smith, Jr. on or about the 12th day of August, 1974, at and in the County of Los Ange-les, State of California, did willfully, unlawfully, feloniously and by means of force and fear attempt to take personal property from the person, possession and immediate presence of Dan Tilford. That at the time of the commission of the above offense said defendants, Ronnell Deshon Luckey and Ellis Smith, Jr. used a firearm.”

> “Count II: For a further and separate cause of action, being a different offense of the same class of crimes and offenses as the charge set forth in Count I hereof, the said Ronnell Deshon Luckey and Ellis Smith, Jr. are accused by the District Attorney of and for the County of Los Angeles, State of California, by this in*1138formation, of the crime of Assault with a Deadly Weapon, in violation of Section 245(a), Penal Code of California, a felony, committed as follows: That the said Ron-nell Deshon Luckey and Ellis Smith, Jr. on or about the 12th day of August, 1974, at and in the County of Los Angeles, State of California, did willfully, unlawfully and feloniously commit an assault with a deadly weapon upon Dan Tilford, a human being.

> “That at the time of the commission of the offense described herein, the defendant Ronnell Deshon Luckey used a firearm.

> “That at the time of the commission of the offense described herein, said defendant Ellis Smith, Jr. used a firearm.”

The above document is printed, in part, and the name Joseph P. Busch, District Attorney for the County of Los Angeles, State of California, is printed thereon, and it purports to be signed by James E. Zeig-ler, Deputy. The words “James E.” appear in handwriting and below the line appears the typewritten name of “James E. Zeig-ler,” followed by the printed word, “Deputy.”

In the lower left side appears the following: “The document to which this certificate is attached is a full true and correct copy of the original on file and of record in my office. Attest 9/14/1977.” Then there appears the stamped name of “John J. Cor-coran, County Clerk and Clerk of the Superior Court of the State of California in and by the County of Los Angeles, by Connie S. Guerrero. Deputy.”

> 8.A printed document was issued from the Superior Court of California, County of Los Angeles, with the following recitation, “Bench warrant ordered issued. Bail set at $50,000.00.” At the bottom of this document appears the following certificate:

> ‘The document to which certificate is attached is a full, true and correct copy of the original on file and of record in my office.

> Attest 9/14/1977

> John J. Corcoran, County Clerk and Clerk of the Superior Court of the State of California in and for the County of Los Angeles

> By Connie S. Guerrero, Deputy,” and the Seal of the Clerk’s Office is affixed thereto.’

> 9. The next document is a “Bench Warrant” issued by the Superior Court of California for the County of Los Angeles, under the seal of that Court, for the arrest of Ellis Smith, Jr. charging him with violating Sections 664/211 and 245 A [245(a)], and for failing to appear for arraignment and plea. Bail was set at $50,000.00 and it is dated September 5, 1974, and signed by Judge Newell Barrett. There is a notation on the side of this document which states, ‘This is an escape from Inglewood Mun. Count.’ There is a certification as follows: ‘The document to which this certificate is attached is a full, true and correct copy of the original on file and of record in my office.

> Attest 9/14/1977”, and bears the stamped name of John J. Corcoran, County Clerk and Clerk of the Superior Court of the State of California.

> By Connie S. Guerrero, Deputy.

> 10. We finally have the following certification:

> “CERTIFICATION — SUPERIOR COURT

> “STATE OF CALIFORNIA ) ss

> COUNTY OF LOS ANGELES )

> “I, Paul G. Breckenridge. Jr., the duly qualified and acting Judge of the Superior Court of the State of California for the County of Los Angeles, do hereby certify that the annexed and foregoing copy of the Information is a full, true, and correct copy of the *1139original Information duly and regularly filed in the said Superior Court on the 4th day of February. 1977; I further certify that the annexed and foregoing copy of the Bench Warrant is a full, true, and correct copy of the original Bench Warrant duly and regularly issued out of the said Superior Court on the 5th day of September 1974; that the said Information/Judgement/Certificate of Magistrate and Bench Warrant are now on file in the said Superior Court.

> “IN WITNESS WHEREOF, I have hereunto set my hand at Los Angeles. County of Los Angeles, State of California, this 22nd day of September 1977.

> /s/ Paul G. Breckenridge. Jr.

> Judge of the Superior Court of the State of California for the County of Los Angeles

> “STATE OF CALIFORNIA ) ss

> COUNTY OF LOS ANGELES )

> “I, John J. Corcoran, County Clerk of the County of Los Angeles, State of California, and ex officio clerk of the Superior Court of said County and State, do hereby certify that John K. Van De Kamp is the District Attorney of the aforementioned County and State; that S. Maverson and James E. Zeigler are the Deputy District Attorney/s of the said County and State; that Barbara J. Moore & Connie S. Guerrero are the Deputy County Clerk/s of the said County and State; that Paul G. Breckenridge. Jr. and E. Talbot Callister are the Judges of the Superior Court of the said County and State (which is a court of record having a seal), and full faith and credit are due to his/their official acts as such; that each of the above named officers was, at the time of signing the annexed instruments, which I have examined, such officer, duly elected or appointed, qualified and acting, and duly authorized by law to execute the same. And I further certify that I am well acquainted with the handwriting of each of the above named officers, and do verily believe the signatures affixed to said instruments are genuine.

> “IN WITNESS WHEREOF, I have hereunto set my hand at Los Angeles. County of Los Angeles, State of California, this 22nd day of September 1977.

> /s/ John J. Corcoran

> John J. Corcoran Clerk of the County of Los Angeles, State of California and ex officio Clerk of the Superior Court of said County and State.

> “STATE OF CALIFORNIA ) ss

> COUNTY OF LOS ANGELES )

> “I, Paul G. Breckenridge. Jr.. Judge of the Superior Court of the State of California for the County of Los Angeles, do hereby certify that John J. Corcoran, is the County Clerk of the County of Los Angeles, State of California and ex officio Clerk of the Superior Court of said County and State (which is a court of record having a seal) and that the signature to the foregoing certificate and attestation is the genuine signature of said John J. Corcoran as such officer; that the seal annexed is the seal of the said Superior Court; that said John J. Corcoran as such Clerk is the proper officer to execute said certificate and attestation, and that such attestation is in due form according to the laws of the State of Califorina.

> /s/ Paul G. Breckenridge. Jr.

> Judge of the Superior Court of the State of California for the County of Los Angeles”

> *1140Section 15-9-31, Code of 1975, provides: “No demand for the extradition of a person charged with crime in another state shall be recognized by the Governor unless in writing and accompanied by a copy of an indictment found, or by an information supported by affidavit, in the state having jurisdiction of the crime or by a copy of an affidavit made before a magistrate there, together with a copy of any warrant which was issued thereon. The indictment, information or affidavit made before the magistrate must substantially charge the person demanded with having committed a crime under the law of that state, and the copy must be authenticated by the executive authority making the demand, which shall be prima facie evidence of its truth.”

Among the supporting papers are two affidavits made before two different magistrates in compliance with the above section. They are the affidavits of Carol L. Willis and C. J. O’Connell and are as follows:

> “IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA

> FOR THE COUNTY OF LOS ANGELES, STATE OF CALIFORNIA

> “The People of the State of California Plaintiff,

> v. AFFIDAVIT OF

> “ELLIS SMITH, JR. aka DAVID EARL CAROL L. WILLIS

> JOHNSON

> Defendant.

> “STATE OF CALIFORNIA, ) ss

> COUNTY OF LOS ANGELES ) .'

> “Personally appeared before me, this 21st day of September, 1977 Carol L. Willis, of the County of Los Angeles, State of California, who being first duly sworn, on oath, deposes and says:

> “That she is over the age of twenty-one years; that she resides in the County of Los Angeles, said State; that by occupations he is a Deputy Sheriff of the Sheriff’s Department of the County of Los Angeles, State of California, assigned to the Fugitive Detail of said Department;

> "That on the 4th day of September, 1974 the District Attorney of the County of Los Angeles, said State, filed his Information in the Superior Court of the State of California for the County of Los Angeles accusing the said defendant of the crimes of Attempted Robbery, in violation of § 664/211, Penal Code and Assault With a Deadly Weapon, in violation of § 245(a), Penal Code, felonies; that arraignment and plea for the said defendant was set for the 5th day of September, 1974;

> “That on the 5th day of September, 1974 when the case for the said defendant was called in said court, the said defendant failed to make his appearance; that the Judge of the said Court ordered a Bench Warrant be issued; that said Bench Warrant was placed in the hands of the Sheriff of the County of Los Angeles, said State, for service;

> “That immediate and diligent search was made for the said defendant throughout the County of Los Angeles and the State of California but that he could not be found therein; that the said Sheriff sent or received communications which are the basis for affiant’s belief that the said defendant is in custody in the State of Alabama;

> “That the said Information, Bench Warrant, Minute order of Superior Court and communications are reproduced by photostatic copy or otherwise and said copies are attached to and made a part of these papers; that said Sheriff also holds an outstanding Warrant of Arrest charging the said defendant with the crime of Escape, in violation of § 4532b [4532(b)], Penal Code, a felony.

> *1141“WHEREFORE, affiant does state and charges the truth to be that the defendant, ELLIS SMITH, JR. aka DAVID EARL JOHNSON, is a fugitive from the justice of the State of California in that he still stands accused of the crimes for which he was to be arraigned and is still amenable to the law under which such arraignment was to be had; that the said defendant has not been in jeopardy on said charges; that the said defendant has not served any sentence or portion of any sentence prescribed by law for the commission of said crimes; that the said defendant is now incarcerated and awaiting extradition in the City of Birmingham, in the State of Alabama.

> /s/ Carol L. Willis

> “Subscribed and sworn to before me, this 21st day of September, 1977

> “By_/s/ Callister_

> JUDGE OF THE ABOVE ENTITLED COURT”

> “IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES

> “The People of the State of California,

> Plaintiff,

> AFFIDAVIT OF

> v. C. J. O’CONNELL

> “ELLIS SMITH, JR. aka DAVID EARL JOHNSON Defendant.

> “STATE OF CALIFORNIA, ) ss.

> County of Los Angeles )

> “Personally appeared before me, this 22nd day of September, 1977 C. J. O’Connell, of the County of Los Angeles, State of California, who being first duly sworn, on oath, deposes and says:

> “That he is over the age of twenty-one years; that he resides in the County of Los Angeles, said State, that by occupation he is a detective for the Police Department of the City of Inglewood, said County and State; that affiant was an investigating officer in the herein criminal matter against the said defendant;

> “That on the 14th day of August, 1974 a Complaint was sworn to before the Judge of the Municipal Court of Inglewood Judicial District, said County and State, charging:

> “That on or about the 12th day of August, 1974, at and in the County of Los Angeles, State of California, the crime of Attempted/Robbery, in violation of § 664/211, Penal Code, a felony was committed by DAVID EARL JOHNSON T/N Ellis Smith, Jr. who, at the time and place last aforesaid, did willfully, unlawfully and feloniously and by means of force and fear attempt to take personal property from the person, possession and immediate presence of Dan Tilford; that at the time of the commission of the above offense said defendant, DAVID EARL JOHNSON T/N Ellis Smith, Jr. was armed with a firearm; that further on same date, at and in the said County and state the defendant committed the crime of Assault With A Deadly Weapon, in violation of § 245, Penal Code, a felony who, at the time and place last aforesaid, did willfully, unlawfully and feloniously commit an assault with a deadly weapon upon Dan Tilford, a human being; that at the time of the commission of the above offense said defendant, DAVID EARL JOHNSON T/N Ellis Smith, Jr. was armed with a firearm. ■

> *1142“That on the 22nd day of August, 1974 the said defendant had a Preliminary Hearing in the said Municipal Court at which time he was held to answer to the Superior Court of the State of California for the County of Los Angeles on the above mentioned charges.

> “That the photograph attached to these papers is a good likeness and the true photograph of the defendant, DAVID EARL JOHNSON T/N Ellis Smith, Jr., whom affiant identifies as the defendant mentioned in the herein affidavit.

> /s/ C. .1. O’Connell

> “Subscribed and sworn to before me, this 22nd day of September, 1977

> Bv Paul C. Breckenridge. Jr._

> JUDGE OF THE ABOVE ENTITLED COURT”

All of the above and foregoing allied papers were duly authenticated by Honorable Mervyn M. Dynally, Acting Governor of the State of California, in accordance with the laws of that State.

In *Krenwinkel v. State,*45 Ala.App. 474, 232 So.2d 346, this Court held:

> “Without clear and convincing proof to the contrary, we presume that the Governor of Alabama has bona fide verified that the person acting as executive of a sister state is not an imposter or usurper of office.”

Faced with this mountainous evidence showing that appellant was in the State of California at the time he was charged with two felonies against the laws of that State, we feel that the judgment of the Circuit Court of Jefferson County in denying appellant’s petition for writ of habeas corpus was correct and the judgment in this cause is due to be and the same is hereby affirmed. *Harris v. State,*257 Ala. 3, 60 So.2d 266; *Martin v. State,*50 Ala.App. 1, 276 So.2d 149.

AFFIRMED.

All the Judges concur.