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Koprivich v. Warden of Baltimore City Jail

Decided: April 29, 1964.

KOPRIVICH
v.
WARDEN OF THE BALTIMORE CITY JAIL, ET AL.



Appeal from the Baltimore City Court; Cardin, J.

Brune, C. J., and Hammond, Horney, Marbury and Sybert, JJ. Horney, J., delivered the opinion of the Court.

Horney

This is an appeal from the order of the Baltimore City Court (Cardin, J.) directing the return of the appellant (Nick Koprivich) to the State of Ohio following the denial of his petition for a writ of habeas corpus for release from custody under a warrant of rendition issued by the Governor of Maryland after a hearing before him on an extradition warrant issued by the Governor of Ohio.

The appellant was charged with the commission of the crime of burglary in St. Clairesville, Belmont County, Ohio, on November 22, 1961. On appeal it is contended: (i) that the documents produced by the demanding state were improperly admitted as evidence; and (ii) that the appellant met the burden necessary to overcome the presumption that he was a fugitive from justice.

(i)

At the hearing before the lower court, four documents were admitted in evidence on behalf of the demanding state over the objection of the appellant. These were: (1) the indictment charging the appellant with the crime for which his extradition was sought; (2) the warrant of arrest together with the affidavit on which it was based; (3) a certified copy of the Grand Jury testimony; and (4) a photograph and an affidavit identifying the appellant as the person charged in the indictment.

In essence the appellant contends that the documentary evidence was inadmissible because the indictment was based on the testimony of an accomplice and because the affidavit accompanying the photograph was made by the same accomplice. But he failed to point out any rule of evidence which would preclude the admission of such evidence for the reasons assigned. Actually the rule is otherwise. Ordinarily, the strictness of the trial rules of evidence are not applicable in extradition proceedings. 1 Wigmore on Evidence (3rd ed.), § 4. See also Munsey v. Clough, 196 U.S. 364 (1905).

The appellant, in claiming that the documentary evidence should have been excluded, further contends that since he could not be convicted on the uncorroborated testimony of an accomplice, the indictment or any other document procured as the result of such testimony would be defective and therefore inadmissible. But, even if it is assumed, without deciding, that the contention might be valid under some circumstances, it is clearly without validity in this case. While a trial court in Ohio may, in its discretion, advise a jury not to convict of felony on the testimony of an accomplice unless there is corroboration, State v. Neal, 117 N. E. 2d 622 (Ct. of App. Ohio 1954), the general rule of law in Ohio is that an accused may be convicted of any crime (except those specified by statute and burglary is not one of them) on the uncorroborated testimony of an accomplice. Allen v. State, 10 Ohio St. 287 (1859); State v. Moore, 139 N. E. 2d 381 (Ct. of Com. Pleas. Ohio 1956); State v. Harmon, 158 N. E. 2d 406 (Ct. of App. Ohio 1958). Furthermore, it is generally held that the validity of an indictment, affidavit or other pleading is a matter for the demanding state, and not the asylum state, to determine. See Downey v. Hale, 67 F. 2d 208 (1st Cir. 1933), cert. den. 291 U.S. 662 (1934); 35 C.J.S., Extradition, § 14(6).

The documentary evidence was properly admitted.

(ii)

The primary contention of the appellant is that he was not in the State of Ohio at the time of the commission of the ...


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