
    Ex parte MENDELL.
    (No. 7350.)
    (Court of Criminal Appeals of Texas.
    Oct. 11, 1922.)
    1. Extradition @=>27 — Extradition may bo had of one charged only with misdemeanor.
    Code Cr. Proc. 1911, art. 10S8, providing for the extradition, upon demand of persons charged in another state with treason, felony, or other crime, is sufficient authority for holding such person, even though he be only charged with misdemeanor in the state demanding him.
    2. Habeas corpus @=>65(2) — Defendant’s testimony as to his innocence will not defeat extradition upon proper demand.
    Accused’s testimony that he was not guilty of the charge made in another state that he deserted his wife and child will not defeat his extradition upon proper demand, since the guilt or innocence of one accused of crime in another state will not be tried in the asylum state.
    Appeal from District Court, Jefferson County; E. A. McDowell, Judge.
    Petition by J. H. Mendell for a writ of ha-beas corpus for discharge from custody, under an executive warrant for extradition to another state. Erom an order denying the writ, petitioner appeals.
    Affirmed.
    R. G. Storey, Asst. Atty. Gen., for the State.
   LATTIMORE, J.

Appellant is held in custody by virtue of an executive warrant issued by the Governor of Texas, upon requisition from the State of Lousiana in proper form. A writ of habeas corpus was sued out before the judge of the Sixtieth judicial district at Beaumont, Tex., under which release was sought, but upon hearing appellant was remanded and brings the case here upon appeal.

There is no brief on file for appellant. As far as we observe, the executive warrant mentioned was correctly issued upon a requisition whose basis was an affidavit filed in a court of competent jurisdiction in the state of Louisiana, wherein appellant was charged with a crime. Article 1088 of our Code of Criminal Procedure provides that one “charged in any other state or territory of the United States with treason, felony or other crime * * * shall, on dsmand, * * * be delivered up, to be removed,” etc. If we properly understand appellant’s contention in this case, as evidenced by his application for habeas corpus and the affidavits offered by him in his behalf upon the hearing hereof, his right-to the relief sought is made to rest upon the proposition that the offense charged against him in the state of Louisiana is bívt a misdemeanor. We do not think such fact sufficient to demand his release nor to prevent extradition. Ex parte Bergman, 60 Tex. Cr. R. 6, 130 S. W. 174; Ross v. Crofutt, 84 Conn. 370, 80 Atl. 90, Ann. Cas. 1912C, p. 1295; Knox v. State, 164 Ind. 226, 73 N. E. 255, 108 Am. St. Rep. 291, 3 Ann. Cas. 539.

Appellant testified that he did not desert his wife and child but was compelled to leave home. The charge against appellant was the desertion of his wife and child, leaving them in necessitous circumstances. The guilt or innocence of one accused of crime in a foreign state will not be tried in the courts of the asylum state. Ex parte Hancock, 75 Tex. Cr. R. 71, 170 S. W. 145. We have carefully examined the record, and are unable to find any error in the action of the court below in denying appellant the relief sought.

The judgment of the Sixtieth judicial district court remanding appellant will be in all things affirmed. 
      <®=»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     