1. EXTRADITION — Texas — Marijuana — Request — Declaration — Unconstitutional — Lack of Merit. Where petitioner fled Texas after being charged with illegal possession of marijuana and now requests declaration in Colorado that Texas law is unconstitutional, held, the request is without merit; accused cannot avoid extradition to Texas on ground that law of that state is unconstitutional; comity requires petition to test claimed constitutionality of Texas statutes in the courts of that state and if unsuccessful there, then in appropriate federal courts.
MR. JUSTICE DAY delivered the opinion of the Court.Page 248
Appellant Denton was the petitioner in a habeas corpus proceeding in Denver district court where he sought to avoid extradition to Texas. He fled from that state after being charged with illegal possession of marijuana. After hearing, the trial court discharged the writ and ordered appellant extradited. Appeal is from that order. We affirm.
[1] Appellant has in the trial court and here requested a declaration that the Texas law is unconstitutional. The various grounds asserted need not be enumerated nor discussed because the issues are for the Texas courts, not Colorado.
We first were confronted with this novel challenge to extradition in Holmes v. People, 169 Colo. 371, 456 P.2d 731 (1969). In that case the fugitive-petitioner claimed his constitutional rights had been violated in the trial in another state. In this case appellant has not been tried, but the rationale in Holmes applies herein. Comity between the states requires petitioner to test the claimed constitutionality of Texas statutes in the courts of that state and if unsuccessful there, then in appropriate Federal courts.
Judgment affirmed.