GEORGE UPTON., petitioner.

WILKINS, J. The petitioner (Upton) appeals from an order denying his petition for a writ of habeas corpus. Upton brought the petition to challenge the legality of his arrest on a warrant issued by the Governor of this Commonwealth in response to a demand from the Governor of Arizona for his rendition to face criminal charges in Arizona. The judge who denied the writ purported to report to the Appeals Court the questions whether a petitioner could be admitted to bail (a) while his petition for a writ of habeas corpus is pending in the Superior Court and (b) while his appeal is pending from the denial of the writ. We transferred the appeal and the reported questions to this court on our own motion.

We affirm the order denying the writ of habeas corpus, and conclude that a judge may grant bail to a prisoner who has a petition for habeas corpus pending in the Superior Court or an appeal pending from an order denying the writ. Upton's Appeal

The charges arise from an alleged break-in at the Automatic Nozzle Exchange in Mesa, Arizona, between October 19 and 20, 1980. In March, 1981, Upton was arrested in

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Massachusetts on a fugitive from justice complaint alleging that he was charged in Arizona with theft and burglary. He was released on bail pending arrest on a Governor's warrant. See G. L. c. 276, Section 20D. On May 5, 1981, he was arrested on a warrant issued by the Governor of this Commonwealth and, on his arraignment that day in Barnstable District Court, he was advised of his right to challenge his arrest by filing a petition for a writ of habeas corpus. On May 7, 1981, Upton was released on $25,000 bail. On May 22, 1981, Upton filed a petition for a writ of habeas corpus in the Superior Court in Barnstable County. After hearing, the petition was denied on September 3, 1981, and Upton was continued on the same bail pending his appeal from the denial of the writ. He argues that the papers presented in support of his rendition were not in order because an affidavit purporting to show his picture was defective and one count in the complaint failed properly to allege a crime. Upton further argues that the judge improperly treated the factual question whether Upton was in Arizona at the time of the alleged crimes.

We start our analysis by noting the limited nature of a rendition proceeding in an asylum State. In Michigan v. Doran, 439 U.S. 282, 289 (1978), the Supreme Court said that "[o]nce the governor has granted extradition, a court considering release on habeas corpus can do no more than decide (a) whether the extradition documents on their face are in order; (b) whether the petitioner has been charged with a crime in the demanding state; (c) whether the petitioner is the person named in the request for extradition; and (d) whether the petitioner is a fugitive." The same issues were described as the relevant ones in the earlier opinion of this court in Maldonado, petitioner, 364 Mass. 359, 362 (1973).

Under G. L. c. 276, Section 14, a part of the Uniform Criminal Interstate Rendition Law (Uniform Rendition Law) (see G. L. c. 276, Section 20R), the demand for rendition must be accompanied by a copy of a judgment of conviction, a sentence, an indictment, an information supported by affidavit,

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or "a copy of an affidavit made before a magistrate of [the demanding] state, and by a copy of the warrant which was issued thereon." Here, there was a copy of a complaint made before a justice of the peace and a copy of the warrant for Upton's arrest issued by the same justice of the peace, reciting that he had "found reasonable cause to believe that such offense(s) were committed and that the accused committed them." A complaint sworn before an officer authorized to administer oaths is the equivalent of "an affidavit made before a magistrate" (G. L. c. 276, Section 14). Murphy, petitioner, 321 Mass. 206, 213-214 (1947). Thus, the documents required by statute were submitted in proper form.

Upton argues, however, that the documents were not regular on their face because as to one affidavit, received from Arizona but not required by law, the affiant failed to complete the form of affidavit. The affidavit of a detective in the Mesa police department stated that an attached picture was that of Upton. He left blank the space on the form following the words: "This knowledge is based upon ______."

We have said that rendition papers may be regular on their face, even if accompanied by a superfluous affidavit that would not meet statutory requirements. Murphy, petitioner, supra at 212-214. See Fenton v. State, 91 Idaho 149, 151 (1966). The allegedly deficient affidavit was not required by law and in no way impeached the required documents. The judge was correct in ruling that the documents were proper on their face.

Upton also challenges the form of the complaint with respect to one charge against him, asserting that it does not charge a crime. The complaint for theft alleges, in part, that Upton "knowingly controlled property of [a named person] . . . with the intent to deprive [that person] of such property, in violation of [Ariz. Rev. Stat. Ann. Section 13-1802 (1978) and other statutes]." Section 13-1802 of the Arizona Revised Statutes defines theft by requiring that the prohibited conduct be "without lawful authority." The complaint does not allege that Upton acted without lawful authority, but it does

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assert that Upton's conduct violated Section 13-1802. Upton cites no Arizona authority to the effect that such a theft count would not allege a crime.

Because Upton does not challenge the other count, alleging burglary, there is admittedly one valid charge set forth in the complaint. Even if we assume that a court in an asylum State may pass on whether a complaint charges a crime, when the request from the demanding State implies that it does (see Munsey v. Clough, 196 U.S. 364, 373 [1905]), any failure of the theft count to charge a crime would be inconsequential. Indeed, unless Arizona has a particularly strict view of criminal pleading, we would expect that an Arizona court would conclude that theft was properly charged in the challenged count.

Upton also challenges the judge's conclusion that he failed to meet his burden of showing that he was not a fugitive. Upton concedes that, once the papers are shown to be regular on their face, the burden rests on him to prove that he was not in the demanding State at the time of the offense. The Governor's grant of extradition is prima facie evidence that Upton is a fugitive. See Michigan v. Doran, supra at 289 (Governor's grant of extradition is prima facie evidence that all constitutional and statutory requirements have been met); Bassing v. Cady, 208 U.S. 386, 392 (1908) (warrant of arrest issued by Governor of rendering State is prima facie evidence that the accused is a fugitive); Murphy, petitioner, supra at 210-211 (rendition warrant prima facie evidence that all necessary legal prerequisites had been complied with and, hence, evidence of the presence of petitioners in the demanding State at the time of the crime alleged); Baker, petitioner, 310 Mass. 724, 729, cert. denied, 316 U.S. 699 (1942) (rendition warrant prima facie evidence that all legal prerequisites have been met). Upton's burden was to show by clear and satisfactory evidence that he was not a fugitive. Baker, petitioner, supra at 730. See Munsey v. Clough, supra at 375 (mere contradictory evidence does not warrant discharging a petitioner).

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The judge considered evidence submitted by Upton which he contended showed that he was in Massachusetts at the time of the alleged offenses. We need not recite that evidence. Some of it the judge disbelieved; some she found to be inconclusive; and the rest did not exclude the possibility of Upton's presence in Arizona on the relevant dates. The judge reached her conclusion without considering evidence presented by a Commonwealth witness and, therefore, we need not consider whether Upton was improperly restricted in cross-examining that witness.

The judge ordered that the petition for a writ of habeas corpus be denied and continued Upton on $25,000 cash bail pending disposition of his appeal. The Reported Questions Concerning Bail

The judge has reported two questions concerning the right of a person to be admitted to bail during the course of a habeas corpus proceeding challenging rendition. The first concerns the right to bail while the habeas corpus proceeding is pending in the Superior Court. The second raises the issue of the right to bail pending appeal from the denial of a writ of habeas corpus seeking release from custody pursuant to a Governor's warrant. [Note 1]

The issues raised by the reported questions are moot because the Superior Court proceeding has ended and we have disposed of Upton's appeal. However, except as they may be presented (a) on report of an interlocutory order to an appellate court for determination while the Superior Court action is pending or before the appeal is decided, or (b) through the single justice session of this court on a request

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for interlocutory relief, the issues will always be moot when they reach an appellate court. Because the questions are fully briefed and raise matters of importance that are likely to arise again, but are unlikely to be capable of appellate review in the normal course before they become moot, this is an appropriate occasion for us to comment on them. See Department of Youth Servs. v. A Juvenile, 384 Mass. 784 (1981), and cases cited; Karchmar v. Worcester, 364 Mass. 124, 136 (1973). [Note 2]

We must take not of one further procedural matter. The judge presented the questions by a document entitled "Reservation and Report." Because she acted on the matter of bail, both pending her decision and pending appeal, she did not reserve any decision and report the propriety of her action. The reservation and report makes no reference to the source of any authority for reporting the questions. Nor do the parties advance any procedural basis for a report of the questions. A petition for a writ of habeas corpus is a civil, as opposed to a criminal, proceeding. Thus, Mass. R. Crim. P. 34, 378 Mass. 905 (1979), concerning reports, does not apply to this action. Rule 81 (a) (1) of the Massachusetts Rules of Civil Procedure, 365 Mass. 841 (1974), states that the civil rules do not apply to "proceedings pertaining to the writ of habeas corpus." Section 111 of G. L. c. 231 authorizes the report by a Superior Court judge of an interlocutory order where the matter ought to be determined by an appellate court before any further proceedings in the trial court. Here, however, there is no occasion for review of any interlocutory order before further proceedings in the trial court, because the judge did not contemplate further proceedings

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in the trial court. We conclude, therefore, that there was no procedural basis for a report of these questions to this court.

This court has the constitutional and statutory (G. L. c. 211, Section 3) power of general superintendence of the courts of the Commonwealth. In the exercise of that power we prefer to deal with these questions in circumstances which are less pressured than would be the circumstances if the questions were presented, for example, on a challenge by a "fugitive" to the denial of bail as a matter of law.

We conclude that a judge of the Superior Court may admit a person to bail while that person's habeas corpus petition is pending in that court. We find authority for the granting of bail in G. L. c. 248, which concerns habeas corpus. Section 19 of that chapter authorizes admission to bail of a person who is "detained for a cause or crime for which he is bailable." The statute makes no exception for persons challenging rendition. The cause for which a person is detained must be "bailable." The Uniform Rendition Law states which offenses are bailable, and that restriction on the right to bail should be recognized. By G. L. c. 276, Section 20D, a person held prior to his arrest on a warrant of the Governor may be admitted to bail "[u]nless the offence with which the person arrested is charged is shown to be an offence punishable by death or life imprisonment." If bail is to be denied to a person so charged at that early stage of the rendition process, both reason and the terms of G. L. c. 248, Section 19, require that it should be denied at habeas corpus stages of the proceeding. If there is a constitutional right to bail in spite of the statutory direction, we will face the question when it is presented. [Note 3] The crimes with which

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Upton is charged are not punishable by death or life imprisonment under Arizona law. [Note 4]

We acknowledge that the general rule in this country is that bail is not available once a person has been arrested on a Governor's warrant. See Annot., 56 A.L.R.2d 668, 675, Section 5 (1957, Later Case Serv. 1976, & Supp. 1982). Some courts have decided that they lack any inherent power to grant bail in such instances. [Note 5] Others have held that State constitutional provisions concerning the right to bail are inapplicable to crimes committed against the laws of another State. [Note 6] All courts which have considered the question seem to agree that the provision for bail in the uniform act, by its terms, applies only to the period prior to the person's arrest on a Governor's warrant. [Note 7] However, we think that the statement in Ruther v. Sweeney, 137 N.E.2d 292, 296 (Ohio Ct. App. 1956), remains sound, namely, that determinations against the right to bail have been made in rendition cases, for the most part, "because of the absence of statutory authority, and where it was claimed the right to release on bail was to be found in the inherent power of the court in the administration of justice." Where there has been a statute authorizing bail in habeas corpus proceedings,

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which made no exception as to fugitives, courts have generally recognized their authority to grant bail during habeas corpus challenges to rendition proceedings. See Application of Haney, 77 Idaho 166, 171 (1955) (relying on State Constitution and statute to allow bail, including bail pending appeal from denial of writ); Ruther v. Sweeney, supra at 296 ("In every case where the right to release the relator on bail in an appeal from a denial of release in a habeas corpus case was based on statutory authority the holdings are in complete accord with our conclusions in this case [i.e., allowing bail pending appeal]"); Ex parte Quinn, 549 S.W.2d 198, 200 (Tex. Crim. App. 1977). [Note 8] Some courts, contrary to the majority view (see n.5 above), have recognized an inherent power to grant bail in a proceeding of this nature. [Note 9] Because there is explicit statutory authority for bail while a habeas corpus proceeding is pending in the Superior Court, we need not decide what, if any, inherent power there might be to grant bail. [Note 10]

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Our conclusion does no violence to the mandate of the Uniform Rendition Law, G. L. c. 276, Section 20R, that the law "shall be so interpreted and construed as to effectuate [its] general purpose to make uniform the law of those states enacting similar laws." We are not construing that law. We are construing the statutes of the Commonwealth concerning bail in habeas corpus proceedings. The Uniform Rendition Law is silent on bail after arrest on a Governor's warrant. It leaves each State to its own devices with respect to bail in such circumstances. The various States which have adopted the Uniform Rendition Law have shown no uniformity on the question of the right to bail while habeas corpus proceedings challenging rendition are pending. Hence, the statutory mandate for uniformity among States enacting the Uniform Rendition Law, even if it were applicable in these circumstances, could not be fulfilled. [Note 11]

The matter of bail pending appeal is largely disposed of by what we have said concerning the authority of a Superior Court judge to admit a person to bail pending determination of the merits of that person's habeas corpus challenge to rendition. A person denied relief in a habeas corpus proceeding may appeal from the final judgment. G. L. c. 231, Section 113. In turn, G. L. c. 231, Section 117, as appearing in St. 1973, c. 1114, Section 202, allows a judge of the Superior Court to "make any proper interlocutory orders, pending such appeal." Like G. L. c. 248, Section 19, it makes no exception for "fugitives." Admission to bail pending appeal would be a "proper interlocutory order," in appropriate circumstances.

We grant that we do not have an explicit statute authorizing bail pending appeal from a denial of a habeas corpus petition as we do (G. L. c. 248, Section 19) for bail while such a

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proceeding is pending in the Superior Court. Although the authority to admit to bail pending appeal is more circumscribed than while the matter is pending in the lower court (the writ having been denied), we decline to place a person who wishes to appeal such a denial in the position of either forgoing the appeal or being incarcerated while the appeal is pending. Such a result would substantially discourage appeals, even seemingly meritorious ones. In this Commonwealth, in appropriate circumstances, convicted felons are entitled to be admitted to bail while their appeals are pending. We note the standards that govern the right of a convicted defendant to a stay of execution pending appeal, and conclude that the same standards should apply to the question of bail pending a "fugitive's" appeal from the denial of a writ of habeas corpus. See Commonwealth v. Hodge (No. 1), 380 Mass. 851, 855 (1980). One category for consideration includes the likelihood of success on appeal. Id.

Although we have concluded that bail may be granted in habeas corpus proceedings challenging rendition, we do not intend to say that bail must be granted. All of the normally relevant considerations bearing on bail are applicable. We have noted the statutory limitation on bail in those cases where the punishment in the demanding State is death or life imprisonment. Moreover, the Commonwealth's obligations to the demanding State should be recognized. It would be a rare case in which bail would be warranted when the "fugitive" had escaped from custody in the demanding State or had violated the terms of his release on bail, parole, or probation. Even where the "fugitive" has not yet been convicted, bail should be granted only in circumstnces in which it is reasonably certain that the Commonwealth will be able to fulfil its obligation to turn the "fugitive" over to the demanding State if he is unsuccessful in his habeas corpus challenge.

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Conclusion

The order denying the petition for a writ of habeas corpus is affirmed. The reported questions are answered in the affirmative, that is, that admission to bail is authorized, subject to the limitations expressed in this opinion.

So ordered.