
    Ex parte STORY.
    (No. 8676.)
    (Court of Criminal Appeals of Texas.
    April 30, 1924.)
    Habeas corpus <®=»92(2) — Relator held entitled to discharge in extradition proceedings.
    Where relator, held under an executive warrant issued upon requisition of Governor of another state, upon trial tendered issue of identity, and evidence introduced was affirmative and uncontroverted that neither at time of offense nor thereafter was relator in such other state,, he was entitled to discharge on habeas corpus proceedings.
    <&wkey;jFor other cases see same topic and KEY-NtTMBBR in ail Key-Numbered Digests and Indexes
    Appeal from District Court, Potter County; Henry S. Bishop, Judge.
    Habeas corpus proceedings by J. O. Story. From a judgment refusing to release him, relator appeals.
    Reversed and relator ordered discharged.
    O. D. Thompson, of Amarillo, for appellant
    Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State’s Atty., both of Austin, for the State.
   MORROW, P. J.

Relator is held under an executive warrant issued upon the requisition of the Governor of the s#ate of Indiana. Upon a habeas corpus hearing the district judge of Potter county refused to release him. Hence this appeal.

J. O. Story was indicted for the offense of robbery with firearms on the 1st day of July, 1921; the alleged offense having on that day been committed in the state of Indiana. The relator was arrested at Amarillo, Tex. and upon the trial tendered the issue of identity. The evidence introduced is affirmative and uneontroverted that neither at the time of the offense nor since was the relator in the state of Indiana. Upon proof of this fact he should have been discharged. The matter of identity was available to him,- was properly invoked, and should have been determined in his favor. The authorities upon the subject are collated in the case of Ex parte Jowell, 87 Tex. Cr. R. 556, 223 S. W. 456, 11 A. L. R. 1407.

The judgment is reversed, and the relator ordered discharged-.  