
    Ex parte ROSS.
    (No. 8716.)
    (Court of Criminal Appeals of Texas.
    May 14, 1924.)
    Extradition <5&wkey;35 — Complaint held insufficient as basis for holding accused as fugitive from justice.
    A complaint in affidavit form, stating affiant “has reason to believe’’ accused is a fugitive from justice, would be good if it is further stated .“and does believe,” etc., but, the latter phrase being absent, the affidavit is insufficient as a basis for holding accused in custody, under Code Or. Proc. 1911, arts. 1090-1099; article 1088 riot applying.
    c&wkey;¡For other eases see same topic and KBY-NUMBISll in all Key-Numbered Digests and Indexes
    Appeal from District Court, Wichita County; P. A. Martin, Judge.-
    Habeas corpus proceedings by J. J. Ross. From the judgment rendered, relator appeals.
    Reversed, and relator ordered discharged.
    Mathis & Caldwell, of Wichita Falls, for appellant.
    Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State’s Atty., both of Austin, for the State.
   LATTIMORE, J.

This is an appeal from an order of the district court of Wichita county, remanding appellant, who sought by habeas corpus to obtain release from custody under a warrant issued by a magistrate before whom a complaint had been filed charging appellant with being a fugitive from justice.

We notice but one matter complained of. Tiie affidavit filed with the magistrate states that affiant “has reason to believe” that the accused is a fugitive from justice in the state .of Oklahoma; said affidavit does not state anywhere, in addition to the above, “and does believe,” etc. Had the affidavit been in the latter form, it would have been held sufficient. Brown v. State, 11 Tex. App. 451; Clark v. State, 23 Tex. App. 260, 5 S. W. 115; Hall v. State, 32 Tex. Cr. R. 594, 25 S. W. 292.

An affidavit in the form of that now before us, in which the affiant states only that he “has reason to believe,” etc., has uniformly been held insufficient by the courts of this state. Smith v. State, 45 Tex. Cr. R. 411, 76 S. W. 436; Justice v. State, 45 Tex. Cr. R. 462, 76 S. W. 437; Green v. State, 62 Tex. Cr. R. 50, 136 S. W. 467. Appellant lays stress on Ex parte Goodman, 79 Tex. Cr. R. 67, 182 S. W. 1120, but we observe that said decision apparently involves confusion of the rules applicable to a case arising under the preliminary arrest of one as a fugitive from justice under articles 1090-1099, C. C. P., with those rules applicable to the extradition of a fugitive under article 1088, Id.

Believing the affidavit insufficient to form the basis- for holding the appellant in this case, for the reason above mentioned, the judgment will be reversed, and the appellant ordered discharged.  