CHAPTER 23-24
EXTRADITION PROCEEDINGS
23-24-1 Definition of terms.
23-24-2 Fugitives from other states--Governor to cause arrest and delivery.
23-24-3 Form of demand for extradition to another state.
23-24-4 Investigation by Governor.
23-24-5 Agreement for return of fugitive to this state after trial or sentence in another state.
23-24-6 Fugitive from another state who departed therefrom involuntarily.
23-24-7 Fugitive from another state who was absent therefrom at the time of the commission of the crime.
23-24-8 Governor's warrant of arrest--Issuance--Recitals.
23-24-9 Manner and place of execution.
23-24-10 Authority of arresting officer.
23-24-11 Rights of accused person before delivery to agent for extradition--Violation as misdemeanor.
23-24-12 Application for habeas corpus to test legality of arrest.
23-24-13 Confinement in jail when necessary.
23-24-14 Taking prisoner from another state to demanding state through this state--Confinement in jail.
23-24-15 Arrest prior to requisition.
23-24-16 Arrest without a warrant.
23-24-17 Commitment to await requisition.
23-24-18 Bail pending proceedings--Conditions of bond.
23-24-19 Failure to arrest under Governor's warrant within specified time--Discharge or recommitment--New bail.
23-24-20 Forfeiture of bail.
23-24-21 Persons under criminal prosecution in this state at time of requisition.
23-24-22 Identifying prisoner as the person charged with the crime--No other inquiry concerning guilt.
23-24-23 Governor may recall warrant or issue alias.
23-24-24 Written waiver of extradition proceedings.
23-24-25 Consent to return to demanding state--Execution--Filing--Effect.
23-24-26 Voluntary return without formality.
23-24-27 Nonwaiver by this state.
23-24-28 Fugitives from this state--Governor to issue warrant.
23-24-29 Application for Governor's requisition from another state--Person charged with crime--Contents--Certification by prosecuting attorney.
23-24-30 Person convicted of escaping or violating bail, probation or parole--Application for requisition, by whom made, contents.
23-24-31 Application for Governor's requisition--Verification--Accompanying documents.
23-24-32 Disposition of copies of application and accompanying documents.
23-24-33 Immunity from civil process.
23-24-34 No immunity as to prosecution for other crimes.
23-24-35 Compensation in extradition cases--Authorization by Governor required--Unauthorized asking or receiving as misdemeanor--Officer defined.
23-24-36 Custody and restraint of person in South Dakota by agent of foreign state.
23-24-37 Uniformity of interpretation.
23-24-38 Severability of provisions.
23-24-39 Citation of uniform provision.
23-24-1. Definition of terms.
Where appearing in this chapter, the term "Governor" includes any person performing the functions of Governor by authority of the law of this state. The term "executive authority" includes the Governor, and any person performing the functions of Governor in a state other than this state, and the term "state," referring to a state other than this state, includes any other state or territory, organized or unorganized, of the United States of America.
Source: SDC 1939, § 34.1701; SL 1953, ch 200, § 1.
23-24-2. Fugitives from other states--Governor to cause arrest and delivery.
Subject to the provisions of this chapter, the provisions of the Constitution of the United States controlling, and any and all acts of Congress enacted in pursuance thereof, it is the duty of the Governor of this state to have arrested and delivered up to the executive authority of any other state of the United States any person charged in that state with treason, felony, or other crime, who has fled from justice and is found in this state.
Source: SDC 1939, § 34.1702; SL 1953, ch 200, § 2.
23-24-3. Form of demand for extradition to another state.
No demand for the extradition of a person charged with crime in another state shall be recognized by the Governor unless in writing alleging, except in cases arising under § 23-24-7, that the accused was present in the demanding state at the time of the commission of the alleged crime, and that thereafter he fled from the state, and accompanied by a copy of an indictment found or by information supported by affidavit in the state having jurisdiction of the crime, or by a copy of an affidavit made before a magistrate there, together with a copy of any warrant which was issued thereupon; or by a copy of a judgment of conviction or of a sentence imposed in execution thereof, together with a statement by the executive authority of the demanding state that the person claimed has escaped from confinement or has broken the terms of his bail, probation, or parole. The indictment, information, or affidavit made before the magistrate must substantially charge the person demanded with having committed a crime under the law of that state; and the copy of indictment, information, affidavit, judgment of conviction or sentence must be authenticated by the executive authority making the demand.
Source: SDC 1939, § 34.1703; SL 1953, ch 200, § 3.
23-24-4. Investigation by Governor.
When a demand is made upon the Governor of this state by the executive authority of another state for the surrender of a person charged with a crime, the Governor may call upon the attorney general or any prosecuting officer in this state to investigate or assist in investigating the demand, and to report to the Governor the situation and circumstances of the person so demanded, and whether the person ought to be surrendered.
Source: SDC 1939, § 34.1704; SL 1953, ch 200, § 4; SL 2023, ch 3, § 30.
23-24-5. Agreement for return of fugitive to this state after trial or sentence in another state.
When it is desired to have returned to this state a person charged in this state with a crime, and such person is imprisoned or is held under criminal proceedings then pending against him in another state, the Governor of this state may agree with the executive authority of such other state for the extradition of such person before the conclusion of such proceedings or his term of sentence in such other state, upon condition that such person be returned to such other state at the expense of this state as soon as the prosecution in this state is terminated.
Source: SL 1953, ch 200, § 5; SDC Supp 1960, § 34.1705.
23-24-6. Fugitive from another state who departed therefrom involuntarily.
The Governor of this state may also surrender on demand of the executive authority of any other state any person in this state who is charged in the manner provided in §§ 23-24-29 to 23-24-32, inclusive, with having violated the laws of the state whose executive authority is making the demand, even though such person left the demanding state involuntarily.
Source: SL 1953, ch 200, § 5; SDC Supp 1960, § 34.1705.
23-24-7. Fugitive from another state who was absent therefrom at the time of the commission of the crime.
The Governor of this state may also surrender, on demand of the executive authority of any other state, any person in this state charged in such other state in the manner provided in § 23-24-3 with committing an act in this state, or in a third state, intentionally resulting in a crime in the state whose executive authority is making the demand, and the provisions of this chapter not otherwise inconsistent, shall apply to such cases, even though the accused was not in that state at the time of the commission of the crime, and has not fled therefrom.
Source: SDC 1939, § 34.1706; SL 1953, ch 200, § 6.
23-24-8. Governor's warrant of arrest--Issuance--Recitals.
If the Governor decides that the demand should be complied with, the Governor shall sign a warrant of arrest, sealed with the state seal, and direct it to any peace officer or other person whom the Governor entrusts with the execution thereof. The warrant must substantially recite the facts necessary to the validity of its issuance.
Source: SDC 1939, § 34.1707; SL 1953, ch 200, § 7; SL 2023, ch 3, § 31.
23-24-9. Manner and place of execution.
The Governor's warrant of arrest shall authorize the peace officer or other person to whom directed to arrest the accused at any time and any place where he may be found within the state and to command the aid of all peace officers or other persons in the execution of the warrant, and to deliver the accused, subject to the provisions of this chapter to the duly authorized agent of the demanding state.
Source: SDC 1939, § 34.1708; SL 1953, ch 200, § 8.
23-24-10. Authority of arresting officer.
Every such peace officer or other person empowered to make the arrest, shall have the same authority, in arresting the accused, to command assistance therein, as peace officers have by law in the execution of any criminal process directed to them, with like penalties against those who refuse their assistance.
Source: SDC 1939, § 34.1709; SL 1953, ch 200, § 9.
23-24-11. Rights of accused person before delivery to agent for extradition--Violation as misdemeanor.
No person arrested on a Governor's warrant shall be delivered to the agent appointed to receive him until he has been first taken to a judge of the circuit court in this state, who shall inform him of the demand made for his surrender and of the crime with which he is charged, and that he has the right to demand and procure legal counsel. Any officer who delivers to the agent for extradition of the demanding state a person in his custody under the Governor's warrant, in intentional disobedience of this section is guilty of a Class 2 misdemeanor.
Source: SDC 1939, §§ 34.1710, 34.9907; SL 1953, ch 200, §§ 10, 11; SDC Supp 1960, § 34.9908; SL 1979, ch 150, § 30.
23-24-12. Application for habeas corpus to test legality of arrest.
If a prisoner taken before a judge pursuant to § 23-24-11 or his counsel shall state that he or they desire to test the legality of his arrest, the judge of such court of record shall fix a reasonable time to be allowed him within which to apply for a writ of habeas corpus. When such writ is applied for, notice thereof, and of the time and place of hearing thereon, shall be given to the prosecuting officer of the county in which the arrest is made and in which the accused is in custody, and to the said agent of the demanding state.
Source: SDC 1939, § 34.1710; SL 1953, ch 200, § 10.
23-24-13. Confinement in jail when necessary.
The officer or persons executing the Governor's warrant of arrest, or the agent of the demanding state to whom the prisoner may have been delivered may, when necessary, confine the prisoner in the jail of any county or first or second class municipality through which he may pass; and the keeper of such jail must receive and safely keep the prisoner until the officer or person having charge of him is ready to proceed on his route, such officer or person being chargeable with the expense of keeping.
Source: SDC 1939, § 34.1711; SL 1953, ch 200, § 12; SL 1992, ch 60, § 2.
23-24-14. Taking prisoner from another state to demanding state through this state--Confinement in jail.
The officer or agent of a demanding state to whom a prisoner may have been delivered following the extradition proceedings in another state, or to whom a prisoner may have been delivered after waiving extradition in such other state, and who is passing through this state with such a prisoner for the purpose of immediately returning such prisoner to the demanding state may, when necessary, confine the prisoner in the jail of any county or first or second class municipality through which he may pass; and the keeper of such jail must receive and safely keep the prisoner until the officer or agent having charge of him is ready to proceed on his route, such officer or agent, however, being chargeable with the expense of keeping; provided, however, that such officer or agent shall produce and show to the keeper of such jail satisfactory written evidence of the fact that he is actually transporting such prisoner to the demanding state after a requisition by the executive authority of such demanding state. Such prisoner shall not be entitled to demand a new requisition while in this state.
Source: SL 1953, ch 200, § 12; SDC Supp 1960, § 34.1711; SL 1992, ch 60, § 2.
23-24-15. Arrest prior to requisition.
Whenever any person within this state shall be charged on the oath of any credible person before any judge or magistrate of this state with the commission of any crime in any other state and, except in cases arising under § 23-24-7, with having fled from justice, or with having been convicted of a crime in that state and having escaped from confinement, or having broken the terms of his bail, probation, or parole, or whenever complaint shall have been made before any judge or magistrate in this state setting forth on the affidavit of any credible person in another state that a crime has been committed in such other state and that the accused has been charged in such state with the commission of the crime, and, except in cases arising under § 23-24-7, has fled from justice, or with having been convicted of a crime in that state and having escaped from confinement, or having broken the terms of his bail, probation, or parole and is believed to be in this state, the judge or magistrate shall issue a warrant directed to any peace officer commanding him to apprehend the person named therein, wherever he may be found in this state, and to bring him before the same or any other judge, magistrate, or court who or which may be available in or convenient of access to the place where the arrest may be made, to answer the charge or complaint and affidavit, and a certified copy of the sworn charge or complaint and affidavit upon which the warrant is issued shall be attached to the warrant.
Source: SDC 1939, § 34.1712; SL 1953, ch 200, § 13.
23-24-16. Arrest without a warrant.
The arrest of a person may be lawfully made also by any peace officer or a private person, without a warrant upon reasonable information that the accused stands charged in the courts of a state with a crime punishable by death or incarceration for a term one year or greater, but when so arrested the accused must be taken before a judge or magistrate with all practicable speed and complaint must be made against the accused under oath setting forth the ground for the arrest as in § 23-24-15; and thereafter the accused's answer shall be heard as if the accused had been arrested on a warrant.
Source: SDC 1939, § 34.1713; SL 1953, ch 200, § 14; SL 2015, ch 138, § 1.
23-24-17. Commitment to await requisition.
If from the examination before the judge or magistrate it appears that the person held is the person charged with having committed the crime alleged and, except in cases arising under § 23-24-7, that he has fled from justice, the judge or magistrate must, by a warrant reciting the accusation, commit him to the county jail for such a time not exceeding thirty days and specified in the warrant, as will enable the arrest of the accused to be made under a warrant of the Governor on a requisition of the executive authority of the state having jurisdiction of the offense, unless the accused give bail as provided in § 23-24-18, or until he shall be legally discharged.
Source: SDC 1939, § 34.1714; SL 1953, ch 200, § 15.
23-24-18. Bail pending proceedings--Conditions of bond.
Unless the offense with which the prisoner is charged is shown to be an offense punishable by death or life imprisonment under the laws of the state in which it was committed, a judge or magistrate in this state may admit the person arrested to bail by bond, with sufficient sureties, and in such sum as he deems proper, conditioned for his appearance before him at a time specified in such bond, and for his surrender, to be arrested upon the warrant of the Governor of this state.
Source: SDC 1939, § 34.1715; SL 1953, ch 200, § 16.
23-24-19. Failure to arrest under Governor's warrant within specified time--Discharge or recommitment--New bail.
If the accused is not arrested under warrant of the Governor by the expiration of the time specified in the warrant or bond, a judge or magistrate may discharge him or may recommit him for a further period not to exceed sixty days, or a judge or magistrate judge may again take bail for his appearance and surrender as provided in § 23-24-18, but within a period not to exceed sixty days after the date of such new bond.
Source: SDC 1939, § 34.1716; SL 1953, ch 200, § 17.
23-24-20. Forfeiture of bail.
If a prisoner is admitted to bail, and fails to appear and surrender himself according to the conditions of his bond, the judge, or magistrate by proper order, shall declare the bond forfeited and order his immediate arrest without warrant if he be within this state. Recovery may be had on such bond in the name of the state as in the case of other bonds given by the accused in criminal proceedings within this state.
Source: SDC 1939, § 34.1717; SL 1953, ch 200, § 18.
23-24-21. Persons under criminal prosecution in this state at time of requisition.
If a criminal prosecution has been instituted against such person under the laws of this state and is still pending, the Governor may either surrender the person on demand of the executive authority of another state, or hold the person until the person has been tried and discharged or convicted and punished in this state.
Source: SDC 1939, § 34.1718; SL 1953, ch 200, § 19; SL 2023, ch 3, § 32.
23-24-22. Identifying prisoner as the person charged with the crime--No other inquiry concerning guilt.
The guilt or innocence of the accused as to the crime of which he is charged may not be inquired into by the Governor or in any proceeding after the demand for extradition accompanied by a charge of crime in legal form as provided by § 23-24-3 shall have been presented to the Governor, except as it may be involved in identifying the person held as the person charged with the crime.
Source: SDC 1939, § 34.1719; SL 1953, ch 200, § 20.
23-24-23. Governor may recall warrant or issue alias.
The Governor may recall the Governor's warrant of arrest or may issue another warrant whenever the Governor deems proper.
Source: SDC 1939, § 34.1720; SL 1953, ch 200, § 21; SL 2023, ch 3, § 33.
23-24-24. Written waiver of extradition proceedings.
Any person arrested in this state charged with having committed any crime in another state or alleged to have escaped from confinement, or broken the terms of his bail, probation or parole may waive the issuance and service of the warrant provided for in §§ 23-24-8 and 23-24-9 and all other procedure incidental to extradition proceedings, by executing or subscribing in the presence of a judge of any court of record within this state a writing which states that he consents to return to the demanding state; provided, however, that before such waiver shall be executed or subscribed by such person it shall be the duty of such judge to inform such person of his rights to the issuance and service of a warrant of extradition and to obtain a writ of habeas corpus as provided for in § 23-24-12.
Source: SL 1953, ch 200, § 25; SDC Supp 1960, § 34.1724.
23-24-25. Consent to return to demanding state--Execution--Filing--Effect.
If and when consent under § 23-24-24 has been duly executed it shall forthwith be forwarded to the Office of the Governor of this state and filed therein. The judge shall direct the officer having such person in custody to deliver forthwith such person to the duly accredited agent or agents of the demanding state, and shall deliver or cause to be delivered to such agent or agents a copy of such consent.
Source: SL 1953, ch 200, § 25; SDC Supp 1960, § 34.1724.
23-24-26. Voluntary return without formality.
Nothing in § 23-24-24 or 23-24-25 shall be deemed to limit the rights of the accused person to return voluntarily and without formality to the demanding state, nor shall this waiver procedure be deemed to be an exclusive procedure or to limit the powers, rights, or duties of the officers of the demanding state or of this state.
Source: SL 1953, ch 200, § 25; SDC Supp 1960, § 34.1724.
23-24-27. Nonwaiver by this state.
Nothing in this chapter contained shall be deemed to constitute a waiver by this state of its right, power, or privilege to try such demanded person for crime committed within this state, or of its right, power, or privilege to regain custody of such person by extradition proceedings or otherwise for the purpose of trial, sentence, or punishment for any crime committed within this state, nor shall any proceedings had under this chapter which result in, or fail to result in, extradition be deemed a waiver by this state of any of its rights, privileges, or jurisdiction in any way whatsoever.
Source: SL 1953, ch 200, § 26; SDC Supp 1960, § 34.1725.
23-24-28. Fugitives from this state--Governor to issue warrant.
Whenever the Governor of this state demands a person charged with a crime or with escaping from confinement or breaking the terms of bail, probation, or parole in this state, from the executive authority of any other state, or from the chief justice or an associate justice of the Supreme Court of the District of Columbia authorized to receive such demand under the laws of the United States, the Governor shall issue a warrant under the seal of this state, to some agent, commanding the agent to receive the person so charged if delivered to the agent and convey the person to the proper officer of the county in this state in which the offense was committed.
Source: SDC 1939, § 34.1721; SL 1953, ch 200, § 22; SL 2023, ch 3, § 34.
23-24-29. Application for Governor's requisition from another state--Person charged with crime--Contents--Certification by prosecuting attorney.
When the return to this state of a person charged with a crime in this state is required, the prosecuting attorney shall present to the Governor his written application for a requisition for the return of the person charged, in which application shall be stated the name of the person so charged, the crime charged against him, the approximate time, place, and circumstances of its commission, the state in which he is believed to be, including the location of the accused therein at the time the application is made and certifying that, in the opinion of the said prosecuting attorney the ends of justice require the arrest and return of the accused to this state for trial and that the proceeding is not instituted to enforce a private claim.
Source: SDC 1939, § 34.1722; SL 1953, ch 200, § 23; SDC Supp 1960, § 34.1722 (1).
23-24-30. Person convicted of escaping or violating bail, probation or parole--Application for requisition, by whom made, contents.
When the return to this state is required of a person who has been convicted of a crime in this state and has escaped from confinement or broken the terms of his bail, probation, or parole, the prosecuting attorney of the county in which the offense was committed, the Board of Pardons and Paroles, or the warden of the institution or sheriff of the county, from which escape was made, shall present to the Governor a written application for a requisition for the return of such person, in which application shall be stated the name of the person, the crime of which he was convicted, the circumstances of his escape from confinement, or of the breach of the terms of his bail, probation, or parole, the state in which he is believed to be, including the location of the person therein at the time application is made.
Source: SL 1953, ch 200, § 23; SDC Supp 1960, § 34.1722 (2).
23-24-31. Application for Governor's requisition--Verification--Accompanying documents.
An application under § 23-24-29 or 23-24-30 shall be verified by affidavit, shall be executed in duplicate and shall be accompanied by two certified copies of the indictment returned, or information and affidavit filed, or of the complaint made to the judge or magistrate, stating the offense with which the accused is charged, or of the judgment of conviction or of the sentence. The prosecuting officer, Board of Pardons and Paroles, warden, or sheriff may also attach such further affidavits and other documents in duplicate as he or it shall deem proper to be submitted with such application.
Source: SDC 1939, § 34.1722; SL 1953, ch 200, § 23; SDC Supp 1960, § 34.1722 (3).
23-24-32. Disposition of copies of application and accompanying documents.
One copy of the application described in § 23-24-31, with the action of the Governor indicated by endorsement thereon, and one of the certified copies of the indictment, complaint, information, and affidavits, or of the judgment of conviction or of the sentence shall be filed in the Office of the Secretary of State to remain of record in that office. The other copies of all papers shall be forwarded with the Governor's requisition.
Source: SDC 1939, § 34.1722; SL 1953, ch 200, § 23; SDC Supp 1960, § 34.1722 (3).
23-24-33. Immunity from civil process.
A person brought into this state by, or after waiver of, extradition based on a criminal charge shall not be subject to service of personal process in civil actions arising out of the same facts as the criminal proceeding to answer which he is being or has been returned, until he has been convicted in the criminal proceeding, or, if acquitted, until he has had reasonable opportunity to return to the state from which he was extradited.
Source: SDC 1939, § 34.1724; SL 1953, ch 200, § 24; SDC Supp 1960, § 34.1723.
23-24-34. No immunity as to prosecution for other crimes.
After a person has been brought back to this state by, or after waiver of extradition proceedings, he may be tried in this state for other crimes which he may be charged with having committed here as well as that specified in the requisition for his extradition.
Source: SDC 1939, § 34.1725; SL 1953, ch 200, § 27; SDC Supp 1960, § 34.1726.
23-24-35. Compensation in extradition cases--Authorization by Governor required--Unauthorized asking or receiving as misdemeanor--Officer defined.
Any officer of this state who asks or receives any compensation, fee, or reward of any kind for any service rendered or expense incurred in procuring from the Governor of this state a demand on the executive authority of a state or territory of the United States, or on a foreign government, for the surrender of a fugitive from justice, or for any service rendered or expense incurred in procuring the surrender of such fugitive, for conveying him to this state, or for detaining him therein, except when requested by the Governor of this state, and on an account audited and paid out of the state treasury, is guilty of a Class 2 misdemeanor.
The term "officer" in this section means any executive or administrative officer of the State of South Dakota or any officer of any county, municipality, township, school district, district, board, bureau, commission, department, or other body or office, exercising executive or administrative powers as part of the government, or any arm of the government, of the State of South Dakota.
Source: SDC 1939, §§ 13.1101, 13.1113; SL 1979, ch 150, § 31; SL 1992, ch 60, § 2.
23-24-36. Custody and restraint of person in South Dakota by agent of foreign state.
Any peace officer or extradition agent of another state bringing any person within this state or transporting such person through the state under a warrant of arrest or extradition warrant issued in another state or the officer of any penal institution of another state conveying or transporting a prisoner of such institution into or through this state shall have the same authority as to the custody and restraint of such person while in the State of South Dakota as duly constituted peace officers of this state have in making an arrest under the process issued by the courts of this state or under the laws of this state.
Source: SL 1923, ch 187; SDC 1939 & Supp 1960, § 34.1625.
23-24-37. Uniformity of interpretation.
The provisions of this chapter shall be so interpreted and construed as to effectuate its general purposes to make uniform the law of those states which enact it.
Source: SL 1953, ch 200, § 28; SDC Supp 1960, § 34.1727.
23-24-38. Severability of provisions.
If any provision of this chapter or the application thereof to any person or circumstances is held invalid, such invalidity shall not affect other provisions or applications of the chapter which can be given effect without the invalid provision or application, and to this end the provisions of this chapter are declared to be severable.
Source: SL 1953, ch 200, § 29; SDC Supp 1960, § 34.1728.
