
    Ex parte LEWIS.
    (No. 3336.)
    (Court of Criminal Appeals of Texas.
    Nov. 18, 1914.)
    1. Courts (§ 97) — Federal Courts — Rules of Decision — Extradition.
    The states having delegated their authority-over matters of extradition to the federal government, the decisions of the federal courts are conclusive on the state courts with reference to such subject.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 329-333; Dec. Dig. § 97.].
    2. Extradition (§ 32) — Proceedings — Papers — Affidavit ob Indictment — Information. ¡
    
    Under Act Cong. Feb. 12, 1793, e. 7, 1 Stat. 302 (U. S. Comp. St. 1913, § 10126), governing extradition, and providing that the demand on the asylum state shall be accompanied by a certified affidavit or indictment, such requirement is a sine qua' non to the granting of the application ; and hence an application; accompanied by a certified copy of an information, and showing that accused had been convicted of a misdemean- or, for which his extradition was demanded, was insufficient.
    [Ed. Note. — For other cases, see Extradition, Cent. Dig. §§ S6-38; Dec. Dig. § 32.]
    Appeal from District Court, Bexar County; W. S. Anderson, Judge.
    Habeas corpus by Thomas E. Lewis. Writ denied, and relator appeals.
    Reversed, and relator discharged.
    Chambers & Watson, of San Antonio, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
    
      
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   DAVIDSON, J.

This is a habeas corpus proceeding arising out of the arrest of relator on extradition warrant issued by the Governor of Texas on the request of the Governor of Louisiana. Without going into a detailed statement of the evidence adduced on the trial under the writ of habeas corpus, the substance of it is that relator was convicted of a misdemeanor in Lake Charles, La., and came to Texas. An extradition requisition was honored by the Governor of Texas, and relator was taken in custody. Accompanying these papers was a certified copy of the information filed in Lake Charles, but there is no certified copy of an affidavit or indictment accompanying the papers, at least none in the record. In this attitude, relator’s contention is that the trial court erred in remanding him to custody to be extradited to Louisiana.

The act of Congress provides that where a party has fled from the demanding state to the asylum state, in order to secure his extradition there must accompany the requisition a certified copy of an affidavit or indictment, as the case may be, charging him with a violation of law. This has been decided in numerous eases to be a sine qua non for his arrest and return to the demanding state. So far as we are aware, all the decisions so hold, unless it be Ex parte Bergman, 60 Tex. Cr. R. 8, 130 S. W. 174. That case seems to be nearly identical with the present case. That opinion shows that there was an information accompanying the requisition, and also it was made to appear the party had been convicted. That case also arose in Louisiana, at Shreveport. In Roberts v. Reilly, 116 U. S. 80, 6 Sup. Ct. 291, 29 L. Ed. 544, the Supreme Court of the United States laid down the rule and declared the law to be that it was a prerequisite to the extradition of a party that the requisition papers be accompanied by a certified copy of the affidavit or indictment as required by the act of Congress; otherwise his arrest, detention, and extradition was unwarranted. This has been followed, so far as the writer has been able to observe, in the cases, federal and state; but whether the state courts have held otherwise or not, we take it, would be immaterial, as the Supreme Court of the United States constitutes the final authority

in passing upon the matters involved in extraditions under the act of Congress. In all of the notes to reported cases that we have been able to find, where the matter has been referred to, the case of Ex parte Hart, 63 Fed. 249, 11 C. C. A. 165, has been cited as authority prescribing rules for the necessary steps in order to secure the extradition of a party, in so far as necessary papers are concerned. That case is also found reported in 28 L. R. A. 801, where notes are found annotated by the reporter. The same rule was laid down in Ex parte Speers, 88 Cal. 640, 26 Pac. 608, 22 Am. St. Rep. 341. The rule was recognized in Ex parte Woon (D. C.) 18 Fed. 899, and in Compton v. Alabama, 214 U. S. 1, 29 Sup. Ct. 605, 53 L. Ed. 885, 16 Ann. Cas. 1098. The same rule was recognized and followed in Ex parte Cheatham, 50 Tex. Cr. R. 51, 95 S. W. 1077, and in Rowland v. State, 35 Tex. Cr. R. 108, 31 S. W. 651. In fact that rule has been followed so far as Texas Is concerned, in the history of its jurisprudence, unless it be in Ex parte Bergman, supra, since Thornton v. State, 9 Tex. 635. The Thornton Case has been cited approvingly in the federal decisions.

We believe the rule laid down in the Cheatham Case, supra, in Roberts v. Reilly, supra, in Ex parte Hart, supra, and all the other cases referred to, lays down the correct rule, and that the Bergman Case, in 60 Tex. Cr. R. 8, 130 S. W. 174, is a departure from the rule and antagonistic to the act of Congress, and should be overruled, and is hereby overruled in so far as it conflicts with this and cited cases. The question of comity between the states cannot override the plain provisions of the act of Congress. The federal authorities are supreme in the matter of extradition in regard to fugitives from one state to the other by express authority of the federal Constitution. The states of the federal Union, in their-sovereign capacity, delegated this authority to the federal government, and wisely. But, be that as it may, they conferred that authority upon the federal government, and by doing so made the act of the Congress of the United States supreme, and the states have no authority to ignore or set aside this act of Congress.

Congress has not seen proper to provide any other reason for extradition, except the fact that a party has been indicted, or has had an affidavit filed against him, charging him with some violation, of the law. An information filed by the prosecuting officer does not take the place of an indictment or an affidavit. Ex parte Hart, supra. Congress could have said, where a prosecution had matured into a judgment, that that would be sufficient basis for the extradition; but that body has not so enacted, and until this occurs the states are powerless to provide this as a basis for extradition. The cases of Roberts v. Reilly, supra, and Es parte Hart, supra, are well-considered cases, and lay down tbe rule that it is a prerequisite and sine qua non that either a certified affidavit or certified indictment should accompany the papers as a basis ior the extradition. This rule has been followed as late as the opinion in Compton v. Alabama, 214 U. S. 1, 29 Sup. Ct. 605, 53 L Ed. 885, 16 Ann. Cas. 1098. As we understand the thoroughly settled law, both by the act of Congress and all the decisions construing and ■ interpreting that act, both by federal and state courts, relator was entitled to his discharge, because a certified copy of an indictment or certified copy of an affidavit neither accompanied the extradition nor is found in this record. If the authorities in Louisiana had such affidavit or indictment, a certified copy of it should have accompanied the extradition papers.

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

PRENDERGAST, P. J.

I am somewhat in doubt on the question raised, and for the present express no opinion.  