Conford, Foley and Leonard. The opinion of the court was delivered by Conford, S.j.a.d.
The State appeals from an order of the Law Division in habeas corpus proceedings brought by the applicant William DeGina discharging him from custody. The applicant had been apprehended in this State pursuant to extradition proceedings instituted by the Governor of Pennsylvania followed by the issuance of a rendition warrant by the Governor of this State. The regularity of the extradition proceedings is not challenged.
The papers attached to Pennsylvania's requisition include a complaint naming the fugitive as William P. DeGina, residing at 71 N. Washington Street, Tarrytown, N.Y., and charging larceny (stealing blank checks), receiving stolen property and conspiracy, all at "approximately 1:30 P.M." on Thursday, February 10, 1966, at the premises of Arjay Motors, Levittown, Bristol Township, Bucks County, Pennsylvania.
At the hearing below applicant was present in the courtroom along with other persons, but was not identified to those present as such until the judge directed he be brought to the counsel table, after all the witnesses had testified.
Applicant's sole proof consisted of the testimony of one Elieson, aged 30, who described himself as a stockbroker and agent in used car and miscellaneous financing businesses, with offices in Hartsdale, N.Y. and New York City, N.Y. He had been in business in New York one year. Previously he had "operated in Florida." He testified that applicant had been in his Hartsdale (Westchester County) office on February 10, 1966 from about 11 A.M. to about 12:15 P.M., conferring about a mortgage applicant had solicited from him. (It is apparently conceded that Hartsdale, N.Y. is more than two hours by car from Levittown, Pa.) The witness had no direct recollection of the specific date or hour involved but reconstructed those from other related circumstances (e.g., he went to Florida the next day). He had no written memorandum or diary entry of the appointment with applicant. He knew applicant's telephone number, but not his address, and was not asked as to the former.
Robert Levondosky, victim of the alleged crimes, offered as a witness by the State, was not able to identify anyone in the courtroom as either of the two persons he testified were involved ("unless he changed some of his looks or something"), but he did identify a photograph showing front and side views of a person wearing a sign, "Police Dept. Bergenfield, N.J. * * * 3-19-65," as that of one of the men who committed the crime and whom he testified he had previously identified therefrom to the police in Pennsylvania. His courtroom identification from the photograph was with some equivocation.
The photograph mentioned was not authenticated by evidence aliunde but was admitted into evidence as exhibit S-1, over applicant's objection based upon lack of authentication, as being "in connection with identification." The back of the photo, on which side the marking of its exhibit number was written in by the reporter, contains an identification of the subject as William Patrick DeGina of 71 N. Washington St., Tarrytown, N.Y., gives the height as 5' 11", weight 160 and hair as gray-black. The photograph itself shows the subject
as having medium-length hair and not wearing eyeglasses. The significance of this data is that, although Levondosky described one of the culprits as "five-ten, five-eleven," and weighing "about 170 pounds," the applicant in court was described by the assistant prosecutor during the course of argument as wearing eyeglasses, having a "crewcut" hair style, and red "dyed" hair. The State charged applicant with "a blatant attempt to perpetrate a hoax."
At the oral argument before this court counsel for applicant questioned whether the data on the back of exhibit S-1 was properly part of the exhibit. While he conceded he had examined that data at the hearing below, he represented to us that he understood the photograph to have been offered in evidence only as to the photograph itself. It would seem to us that the entire document, front and back, is properly to be regarded as included in the exhibit, particularly in view of the place of marking of the exhibit number. However, we need not pursue this question further at this juncture since our disposition of this appeal will afford both sides the opportunity of full protection with respect to this exhibit.
In announcing his decision at the conclusion of the proofs and before argument the trial judge stated: "* * * I find there is no proof of identification that the man was in that particular area at this time." After argument the court said: "I am going to make a finding that there is no proof before this Court that this man was in Pennsylvania at that particular time and I will allow the writ of habeas corpus."
At the outset, it must be observed that the trial judge does not appear to have been guided by the correct rule as to presumptions and burden of proof in a contest of this kind. He appears to have labored under the assumption that the State bears the burden of proof of establishing that the arrested person was present in the demanding state at the time of the crime and is a fugitive therefrom. To the contrary, the rule is that "the demanding authority's warrant is ...