SOUTH CAROLINA

v.

BAILEY

Mr. Justice McReynolds delivered the opinion of the Court.

Sunday night, May 1st, 1932, (probably about 10:30 Eastern Time) Hunt, a police officer, was murdered on a well-lighted street in Greenville, South Carolina. An affidavit by policeman Corea, May 5th, before a local magistrate charged Ray Bailey, respondent here, with the crime. As provided by the federal statute, demand was made upon the Governor of North Carolina, for delivery of the accused as a fugitive from justice. Bramlett and Hammond wrere designated as agents to bring him back.

This requisition was promptly honored; and a warrant issued directing officers in North Carolina to arrest respondent, “Afford him such opportunity to sue out a writ of habeas corpus as is prescribed by the laws of this State and to thereafter deliver him into the custody of the said C. R. Bramlett and L. W. Hammond to be taken back to the said State, from which he filed.” June 7th, acting as commanded, the sheriff of Jackson County took him into custody. He at once obtained a writ of habeas corpus from the local Superior Court. His petition therefor alleged illegality of custody “ for that the defendant is charged with an offense in the State of South'Carolina, to-wit, the murder of A. B. Hunt, on or about the 1st day of May, 1932, when, at which time, this affiant was in’the State of North Carolina, and was not in the State of South Carolina.”

The sheriff in his return to the writ alleged that. Bailey “ is being legally and lawfully held in custody after having been arrested on a warrant of extradition issued by the Governor of North Carolina on the 9th. day of ’May, 1932, upon requisition for same by the Governor of South Carolina, on and for a charge of murder alleged to have been committed in the State of South Carolina, said war rant of extradition having been duly executed by me on the said Ray Bailey, alias Ray Keith, on the 7th day of June, 1932.”

The Judge of the Superior Court sitting at Sylva, N.C., heard the cause June 27th, 1932. A number of affidavits were received without objection, and thirty or more witnesses were examined in open court. At the conclusion of the testimony the Judge announced:

“ Gentlemen, I think there has been an issue raised here, I don’t think I have a right to pass on, that of identity, and at the same time I don’t think it would be fair to the defendant to send him to South Carolina to stand a trial, as it would be very expensive to'him and his folks; under the testimony I don’t think there would be a jury anywhere'that would ever find him guilty beyond a reasonable doubt. I shall, therefore, discharge him under the writ and let him go.”

This formal judgment followed:

“ 1. That Ray Bailey (alias Ray Keith) is a citizen and resident of the State of North Carolina.

“ 2. That he is not a fugitive from justice from the State of South Carolina, and was not present at the time of .the commission of the alleged crime at Greenville, South Carolina.

'“ 3. That the State of South Carolina has failed to show probable cause for holding the said Ray Bailey in. custody, or that he committed the alleged crime — the murder of A. B. Hunt, and has failed to produce sufficient evidence to warrant the Court in refusing the Writ, and the Court finding from all the evidence introduced in this cause that the petitioner is entitled to the relief sought in his petition and the Writ of Habeas Corpus; . . .

“ It is, therefore, upon motion . . . considered, ordered, .decreed and adjudged by the Court that the petition and Writ be allowed and that the defendant be and he is hereby released from custody.” The Supreme Court of North Carolina reviewed the* cause upon certiorari under title —“ In the matter of Ray Bailey alias Ray Keith.” It affirmed the challenged judgment and, among other things, said [203 N.C. 362; 166 S.E. 165']—

“ In the base at bar a cohtroversy of fact arose between the contending parties, that is the demanding state and the prisoner, as to whether the prisoner was in the. demanding state at the time the alleged offense was committed. The Writ of Habeas Corpus' was created and fashioned for the express purpose of determining such* controverted fact. The statute and public policy require, that such-fact be determined in. a summary manner. Doubtless in given cases different minds would work out diverse conclusions, but. after all it. is perhaps wise that the determination of the ultimate fact should be lodged'in the sound legal discretion of an impartial judge, commissioned by the law of the land and the inherent sense, of the responsibility of his high office ‘ to do what to justice appertains.’ He hears the witnesses and observes their mental leanings or bias toward the question involved.- He senses the atmosphere of the case. Moreover it would doubtless be a dangerous experiment to undertake by a judicial decree of an appellate court to prescribe a legal strait-jacket for such, matters.

“ Exercising the power delegated by statute and-supported in principle by the decisions of this state, the hearing judge found certain facts and set them forth in his judgment. The last inquiry in fhe solution of the appeal is: What is the effect of the findings of fact set out in the judgment? Whatever may be the variable conclusions reached by other courts, that inquiry is settled in North Carolina. The law is thus stated: ‘The findings of fact made by the judge of the Superior Court, found as they are upon competent evidence, are also conclusive on us, and we must therefore base our judgment upon his findings, which-amply sustain his order.’ In re Hamilton, 182 N.C. 44, 108 S.E. 385. See also Clegg v. Clegg, 186 N.C. 28, 118 S.E. 824; In re Hayes, 200 N.C. 133, 156 S.E. 791.”

The matter is here on certiorari.

No question is raised concerning the form or adequacy of the writ issued by the Governor of North Carolina.

Prima facie Bailey was in lawful custody and upon him rested the burden of overcoming this presumption by proof. McNichols v. Pease, 207 U.S. 100, 109.

This he undertook to do. ^ His own affidavit positively asserted his presence in North Carolina when the alleged crime' occurred. He narrated his movements, all within tha$ State, from Suncjay morning, May 1st, when he was at Asheville (north of Greenville, S.C., sixty-one miles over of the Union should equally take care that the provisions of the Constitution be . hot so narrowly interpreted as to enáble offenders against the laws of a State to find a permanent asylum in the. territory .of another State.’ ”

Considering the Constitution and statute ánd the declarations of this Court, we.may not properly approve the discharge of the respondent unless it appears from-the record that he succeeded in showing by clear and satisfactory evidence that he was outside the limits of South Carolina at the time of the homicide. Stated otherwise, he should not have been released unless it appeared beyond reasonable doubt that he was without the State of South Carolina when the alleged offense was committed and, consequently, could not be a fugitive from her justice.

The record discloses only a' conflict of evidence; the requirement which we have indicated has not been met; and the challenged judgment must be reversed.

The cause will be remanded to the Supreme Court of North Carolina for further proceedings not inconsistent with this opinion.

_ 7 Reversed.

Mr. Justice Brandéis and Mr. Justice Butler are of the opinion that-the evidence, while possibly sufficient to sustain, does not require a finding that there is probable cause to believe that the accused was a fugitive from South Carolina, and therefore this court is not warranted in reversing the judgment of the Supreme Court of North Carolina.

Rev. tats. § 5278. Whenever.the" executive authority of any State or Territory demands any person as a fugitive from justice, of the executive authority of any State or Territory to which such person has filed, and produces a copy of an-indictment found or an affl-. davit made before a magistrate of any State or Territory, charging the person .demanded with having committed treason,'felony, or other crime, certified as authentic by the governor or chief magistrate of the State or Territory from whence the person so charged has filed, it shall be the duty of the executive authority of the State or Territory to which such person has filed to cause him to be arrested and. secured, and to cause notice of the arrest to be given to the executive authority making such demand, or to the agent of such authority appointed to receive the fugitive, and to cause the fugitive to be delivered to such agent when he shall appear. If no such agent appears within six months from the time of the arrest, the prisoner' may be discharged. All costs or expenses incurred in the apprehending, securing, and transmitting such fugitive to the State, or Territory making such demand, shall be paid by such State or Territory,

Kentucky v. Dennison, 24 How. 66; Ex parte Reggel, 114 U.S. 642; Roberts v. Reilty, 116 U.S. 80; Hyatt v. Corkran, 188 U.S. 691; Munsey v. Clough, 196 U.S. 364; Appleyard v. Massachusetts, 203 U.S. 222; McNichols v. Pease, 207 U.S. 100; Drew v. Thaw, 235 U.S. 432; Innes v. Tobin, 240 U.S. 127; Biddinger v. Commissioner of Police, 245 U.S. 128.