Willin v. Sheriff

⁶⁶⁸ Henderson, J., delivered the opinion of the Court. These are applications for leave to appeal from refusal of the writ of habeas corpus, in the identical cases of two persons held under warrants of rendition issued by the Governor of Maryland upon extradition warrants from the State of Delaware. Petitioners had been convicted of robbery and sentenced to prison in Delaware, but escaped and were apprehended by the Sheriff of Caroline County, in cooperation with the Maryland State Police, on warrants issued by a trial magistrate, charging flight from justice in Delaware. Upon their refusal to waive extradition, a hearing was held by an Assistant Attorney General, and on December 18, 1952, the Governor issued a warrant of rendition.

On the same day the petitioners were brought before the Circuit Court for Wicomico County, pursuant to section 24, Article 41, Code of 1951, and requested time to test the legality of the arrest, which was granted. On December 22, 1952, they petitioned for habeas corpus, and were granted a hearing before Judge E. Dale Adkins. From an order remanding them to the custody of the Sheriff, for delivery to the Delaware authorities, they have applied for leave to appeal. State ex rel Gildar v. Kriss, 191 Md. 568 , 62 A. 2d 568 .

They contend (1) that they were not.served with any warrants at the time of their initial arrest in Maryland, (2) that they were not taken before any Judge before being taken before the Governor for hearing, (3) that at the hearing before the Assistant Attorney General no witnesses from the State of Delaware appeared, (4) that there was no testimony at that hearing to show that the crime of escape had been committed, or that the prisoners were the persons accused of said crime, (5) that the trial judge erred in admitting evidence at the habeas corpus hearing as to their identity and in declining to order their reléase. It may be noted that there is no contention that the extradition papers were not in proper form. The first two contentions are without merit. Judge Adkins, in the opinion filed, stated as a fact that warrants ⁶⁶⁹ were issued by the trial magistrate and that the petitioners refused to waive extradition.

The procedure outlined in Sections 27 and 28, Article 41, Code of 1951, was evidently followed. If there was any irregularity, it would not necessarily be fatal in the present case. Cf. Johnson v. Warden, Md. Penitentiary, 200 Md. 654 , 90 A. 2d 221 .

The matter to be tested is not the legality of a