People ex rel. Teitelbaum v. Ryan

The appellant was arrested charged with being a fugitive from justice, and upon his petition in which he denied that he was the person named in the warrant, or wanted by the Massachusetts authorities for the crime for- which extradition was granted, or that he was in that State on the date of the alleged! commission of -such crime, or was a fugitive from justice, a writ of habeas corpus was allowed at Special Term. The respondent returned that he held the relator under a rendition warrant, reciting that “ Philip Teitelbaum, otherwise called Philip Silbert, stands charged in the county of Suffolk, Commonwealth of Massachusetts, with -the crime of larceny of money over one hundred dollars in value, and has fled therefrom and taken refuge in the State of New York, and requiring and commanding that the said Philip Teitelbaum, otherwise called Philip Silbert, be arrested and,secured wherever he may be found within the State and thereafter and after compliance with the requirements of section 827 of the Code of Criminal Procedure, to deliver him into the custody of Thomas M. Towle, the agent

The relator traversed the return, denying that he was the individual named in the warrant of extradition; that he was or ever had been a fugitive from Massachusetts or that he ever ■committed a larceny from any one in Massachusetts. Later in ■the proceeding the traverse was amended by including a specific -denial that the relator was in the State of Massachusetts on the 29tih day of May, 1917, or on that day left the State of Massachusetts and became a fugitive from- that State, or on that day •committed any crime of larceny in that State. For the purpose óf fixing the date upon which the alleged larceny was committed, the court received a copy of the indictment against “ Philip Titelbaum ” in evidence without objection, and, after denying the relator’s motion that -before he offered any proof the district attorney he compelled to offer proof of identification that he was the identical person wanted in the State of Massachusetts under the name of Philip Titelbaum or Philip S-ilhert, proceeded to take the evidence presented by the respective parties,1 after which- the ordier appealed from was made. The relator1 contends that upon- the filing of his traverse it 'became incumbent upon the district attorney to 'assume the affirmative on the issues, -and offer evidence in- support of the facts set up in the return, and that the burden of proof rested upon -the demanding State to establish its- claim that the relator -was the person named in the rendition warrant, and that it was error to deny his motion to compel the respondent to assume the burden of proof. I do not so .understand the law. The identity- of the name of the relator with the name of the person named in the rendition warrant raised the presumption that the persons were the same, as we held in People ex rel. Epstein v. Patton ( 177 App. Div. 933 ), and as has been uniformly held by the courts in the many authorities to which our attention is directed1 in the -brief of the

It is further contended that it was error for the learned Special Term to permit evidence of a former conviction. The fact that the relator had, prior to the trial in the case at bar, served a term in prison, was first brought out on the cross-examination of relator’s witness Goldberg, without objection. In answer to the question of the district attorney, “ Did you miss- him for a long time ? ” the witness answered, “ I missed him a couple of years. He was in prison.” Later, when the respondent was on the stand, he was asked by the district attorney, “ When was the last time you saw him before you arrested him this time? A. June, 1914. Q. Where? A. I brought the defendant, Philip Titelbaum, from the office of the Auburn) prison June 23, 1914, under an indictment for robbery.” The relator did not object until after the witness

The remaining exceptions argued do not present reversible error, and the order must be affirmed.

Jenks, P. J., Thomas, Hills and Putnam, JJ., concurred.

Order affirmed.