
    Ex parte HOLT.
    (No. 7482.)
    (Court of Criminal Appeals of Texas.
    Nov. 15, 1922.)
    Extradition <&wkey;>24, 36 — -Statute is authority for extradition; warrant charging defendant with offense by information insufficient.
    Authority for extradition exists under Rev. St. U. S. § 52178 (U. S. Comp. St. § 10126), providing that, when the executive authority of any state demands any person as a fugitive from justice of the executive authority of any state or territory to which such person has' fled, and produces a copy of an indictment found or an affidavit made before a magistrate charging the person demanded with having coim-mitted a crime, etc; and where an extradition warrant stated that defendant was charged by information it was insufficient.
    Appeal from District Court, Shelby County; Chas. L. Braehfield, Judge.
    Application by R. 6. Holt for a writ of habeas corpus. From an order refusing to discharge relator from custody, he appeals.
    Reversed and remanded, with directions.
    Sanders & Sanders, of Center, for appellant.
    R. G. Storey, Asst. Atty. Gen., for the State.
   MORROW, P. J.

This appeal is from an order of the district court of Shelby county refusing to discharge the relator upon the trial of a habeas corpus proceeding. Relator was held by virtue of an extradition warrant issued by the Governor of this state upon the requisition of the Governor of Oklahoma. The warrant contains this language;

“Whereas, it has been made known to me by the Governor of the state of Oklahoma that R. G. Holt stands charged by information before the proper authorities, with the crime of obtaining money and property by means and use of a bogus cheek, committed in said state, * * * and,
“Whereas, said demand is accompanied by copy of said information duly certified as authentic by the Governor of said State.”

The authority for the extradition is-found in the statutes of the United States, in which it is said;

“Whenever the executive authority of any state or territory demands any person as a fugitive from justice, of the executive authority of any state or territory to which such person has fled, and produces a copy of an indictment found or an affidavit made before a magis ■ trate of any state or territory, charging the person demanded with having committed treason, felony, or other crime,” etc. R. S. of the United States, § 5278 (U. S. Comp. St. § 10126).

It is to be noted that this statute requires the production of a copy of an indictment found or affidavit made. The executive warrant in the instant ease purports on its face to issue for one who is charged by information with an offense. The statement of facts also shows that the relator was charged under an information filed by the county attorney and not upon an affidavit or indictment. Whether, in the absence of an affidavit or indictment, extradition proceedings may be had upon an information filed, is a subject upon which the authorities are conflicting. In this state, in the case of Ex parte Bergman, 60 Tex. Cr. R. 8, 130 S. W. 174, it was held that, where the information was followed by a conviction, and the requisition was accompanied by the judgment of conviction of an offense, the law was satisfied. It is to be noted that the words used in the Constitution of the United States are these: “A person charged in any state”— while the statute is in the language which we have quoted in the quotation, supra. In the case of Ex parte Lewis, 75 Tex. Cr. R. 320, 170 S. W. 1098, after a review of many authorities, this court decided that an “information” would not suffice. In that case, as in the one at bar, there had been no conviction of the offense charged in the information. Upon these authorities, we ar'e constrained to hold that the extradition warrant in question did not justify the refusal of the trial court to discharge the relator.

The judgment is therefore reversed, and the cause remanded, and direction given that the relator be released from custody. 
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