
    Ex parte ROSELLE.
    (No. 5827.)
    (Court of Criminal Appeals of Texas.
    May 5, 1920.
    On Motion for Rehearing, June 9, 1920.)
    1. Evidence <&wkey;83(I) — Courts will take judicial notice that Lieutenant Governor was duly elected and had qualified.
    The courts will take judicial notice that one who signed an extradition warrant as acting Governor was the duly elected and qualified Lieutenant Governor, and had the authority, and was required, in the absence of the Governor, to act as such.
    2. Evidence <&wkey;83(I) — Presumption of regularity of acts of acting Governor.
    Where an extradition warrant was signed by the acting Governor and duly certified by the secretary of state, the presumption is in favor of the regularity of the acts of the acting Governor, and in the absence of showing to the contrary his acts will be upheld.
    On Motion for Rehearing.
    3. Habeas corpus <&wkey;85(2) — One attacking validity of a warrant, regular on its face and . signed by acting Governor, has burden of proof.
    One attacking on habeas corpus a warrant for extradition, which is regular on its face, etc., has the burden of showing that the prima facie case of regularity was not in accordance with the facts.
    4. Habeas corpus <&wkey;30(2)— Jurat of justice of foreign state, affixed to affidavit, held not open to attack on account of technical defects.
    Objection to the jurat of a justice of the peace affixed to the affidavit, a copy of which accompanied the Governor’s extradition warrant, and which affidavit was certified as authentic by. the Governor of the demanding state, on the ground that it did not state the number of the justice’s precinct, will not be considered in habeas corpus proceedings, where there was nothing to show that in the demanding state a complaint sworn to before a justice of the peace was void, unless he stated in his jurat the number of his precinct, for, even though there was a technical defect in the jurat, it might be amended.
    5. Habeas corpus t&wkey;30(2) — Fugitive not discharged because of substantial defects in state’s pleadings under law of demanding state.
    In habeas corpus proceedings a fugitive from justice arrested under an extradition warrant will not be discharged because of substantial defects in the pleadings of the state, under the laws of the demanding state.
    6. Extradition <&wkey;36 — Not necessary that there be a certified copy of complaint and indictment accompanying warrant.
    In an extradition case, it is not necessary that there be a certified copy of the indictment or of the complaint accompanying the Govern- or’s warrant.
    7. Extradition <&wkey;34 — Where requisition shows affidavit in demanding state, and demand is made, requirements of law are met.
    Where a requisition shows that an affidavit has been made against the accused in the demanding state, and that a demand has been made upon the Governor of the state of the forum, which certifies that the affidavit is authentic, the requirements of the law are met, and it is immaterial, on habeas corpus to secure the release- of one held under an extradition warrant, that the prosecuting attorney of a county of the demanding state was allowed to testify that certain acts constitute an offense under the law of that state.
    Appeal from Criminal District Court, Harris County; C. W. Robinson, Judge.
    Application of P. L. Roselle for writ of habeas corpus. Prom a judgment remanding him to custody, he appeals. Affirmed.
    Heidingsfelders, of Houston, for appellant
    Alvin M. Owsley, Asst. Atty. Gen., for the State.
   LATTIMORE, J.

This is an appeal from a judgment of the criminal district court of Harris county, remanding appellant to the custody of certain officers of that county, and directing that he be forthwith delivered to the extradition agent of the state of Wyoming.

On April 12, 1920, a warrant issued from the office of the Governor of Texas, duly reciting that appellant stood properly charged by affidavit with the offense of forgery in the state of Wyoming, and that demand had been made, in accordance with the laws of the United States and of this state, for the delivery of appellant to a named officer of said state of Wyoming, to be by him extradited. The application for the writ of habeas corpus seems to set up that appellant was detained without any warrant or due process of law, it being stated therein that he was held under a telegram'from a Wyoming officer. The application was dated April 7, 1920. A hearing was had in the court below, and judgment rendered, remand'ing appellant on April 18, 1920, and the warrant above referred to seems to have been offered in evidence. We think the judgment of the trial court correct. Said warrant was signed by W. A. Johnson, acting Governor, and duly certified to by the secretary of state. This court judicially knows that W. A. Johnson is the duly elected and qualified Lieutenant Governor of Texas, and that he has authority, and is required, in the absence or inability of the Governor, to act as Governor of the state. The presumption is in favor of the regularity of the acts of the said Johnson as acting Governor, and, in the absence of some showing to the contrary, such acts will be upheld.

The objections to the jurat to the complaint against appellant are not matters which we can consider.

The judgment of the trial court is affirmed.

On Motion for Rehearing.

In a motion for rehearing it is insisted that we were in error in upholding the action of the lower court in remanding appellant to the custody of the officers, who held him under a warrant issued by W. A. Johnson, acting Governor of Texas, upon a requisition from the Governor of Wyoming. No authorities are cited intimating the incorrectness of our holding originally in this regard. The warrant is regular on its face, is signed by W. A. Johnson, acting Governor, .is attested by the great seal of Texas, and the signature and seal of the secretary of state of Texas. The burden is. on appellant to show that this prima facie case of regularity was not in accord with the facts, and such burden is not met by ally showing in this case. We think the regularity of the acts of the acting Governor is to be presumed, in the absence of any affirmative attack and showing relative thereto. Ex parte Stanley, 25 Tex. App. 378, 8 S. W. 645, 8 Am. St. Rep. 440; Ex parte White, 39 Tex. Cr. R. 499, 46 S. W. 639; Ex. parte Hancock, 75 Tex. Cr.R. 71, 170 S. W. 145.

The objection to the jurat of the justice of the peace, affixed to the affidavit, a copy of which accompanied the warrant of the Governor, and which affidavit is certified by the Governor of Wyoming as authentic, will not be considered by us. Said affidavit shows upon its face that it was made before one of the justices of the peace of Platte county, Wyo., and nothing appears on the part of appellant, or anywhere in the record, showing that in the state of Wyoming a complaint sworn to before a justice of the peace is void, unless the justice states in his jurat the number of his precinct, etc. If there be a technical defect in the jurat, the same might be amended. Gubine v. State, 68 Tex. Cr. R. 99, 151 S. W. 301; Sanders v. State, 52 Tex. Cr. R. 156, 105 S. W. 803; Flournoy v. State, 51 Tex. Cr. R. 29, 100 S. W. 151. This court will not discharge a fugitive from justice upon the ground even of substantial defects in the pleadings of the state under the law of the demanding state. Pearce v. Texas, 155 U. S. 311, 15 Sup. Ct. 116, 39 L.

Ed. 164; Coleman v. State, 53 Tex. Cr. R. 99, 113 S. W. 17; Ex parte Pearce, 32 Tex. Cr. R. 307, 23 S. W. 15.

That the prosecuting attorney of Wheatland, Wyo., was permitted to state that, under the statutes in that state, one who had uttered or passed a forged instrument would be deemed guilty of forgery, was immaterial, and would not call for any revision of the action of the trial court in remanding appellant. The hearing was before the court, and it has been our holding that it was not .necessary that there be a certified copy of the complaint or Indictment accompanying the Governor’s warrant. Ex parte Choatham, 50 Tex. Cr. R. 53, 95 S. W. 1077. If the requisition shows that the affidavit had been made against the accused in the demanding state, and that a demand had been made upon the Governor of this state, which certifies that the affidavit is authentic, the requirements of the law are met. Ex parte Denning, 50 Tex. Cr. R. 629, 100 S. W. 402.

We are of opinion that the requirements of our statute are fully met in the instant case, and the motion for rehearing will be overruled. 
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