
    Ex parte HAYNES.
    (No. 9038.)
    (Court of Criminal Appeals of Texas.
    Nov. 12, 1924.
    Rehearing Denied Jan. 7, 1925.)
    1. Extradition <@=>36 — When defendant not held under executive warrant authorizing extradition stated.
    If executive warrant authorizing extradition of defendant revealed that it was based on an insufficient demand, or if it be shown that papers accompanying demand were insufficient to authorize extradition, defendant would not be held thereunder.
    2. Habeas corpus <8=385(2) — Executive warrant for extradition makes prima facie case, if not defective on its face.
    If executive warrant authorizing extradition of defendant was not defective on its face in habeas corpus trial, it would make a prima fa-cie case for demanding state.
    3. Extradition <©=>36 — Executive warrant need not recite contents of papers accompanying demand for defendant. (
    Executive warrant for extradition of a defendant heed not recite contents or effect of papers which accompanied demand for extradition, and in their absence court would assume that they presented to Governor sufficient grounds on which to base his action.
    4. Habeas corpus <©=385(2) — Burden on defendant to show that Governor in granting extradition was acting on insufficient data.
    Where executive warrant authorizing extradition of defendant did not recite contents or effect of papers accompanying demand, burden was on defendant to show that Governor was acting on insufficient data in granting warrant.
    5. Habeas corpus <©=390 — Refusal to postpone habeas corpus hearing in extradition proceedings held not erroneous.
    That court declined to postpone habeas corpus hearing in extradition proceedings because defendant did not receive from secretary of state certified copies of requisition and all accompanying papers which he had requested did not constitute error, where no showing was made that such matter would have enabled defendant to resist extradition.
    6. Habeas corpus <©=>85(2) — Papers accompanying requisition in extradition proceedings not assumed to reveal facts enabling defendant to resist proceedings.
    Where papers accompanying requisition in extradition proceedings were not produced, court could not'assume that they revealed any facts which would enable defendant to resist proceedings.
    7. Habeas corpus <©=>113(12) — Burden on one complaining of court’s ruling to show that error was committed.
    Burden is on one complaining of court’s ruling to show that error was committed which was detrimental to party complaining thereof.
    On Motion for Rehearing.
    8. Extradition <©=>36 — Recitals in warrant should' show that defendant is charged with extraditable offense.
    Recitals in warrant of extradition should embrace substance of documents on which Governor of asylum state determines that alleged fugitive was charged in demanding state with an extraditable offense, and should enable him to state therein that person was charged by indictment or affidavit.
    9. Extradition <@=>36 — Recital in warrant showing that documents disclosed conviction of defendant would be sufficient.
    Recital in extradition warrant, showing that documents before Governor issuing warrant disclosed conviction of fugitive within purview of the law, would be sufficient.
    10. Extradition <©=>29 — Accused “charged” within meaning of Constitution when prosecution is initiated and pursued to judgment of conviction.
    When a prosecution is initiated and pursued to judgment of conviction, accused is “charged” within meaning of United States Constitution.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Charge (In Criminal Law).]
    11. Extradition <©=>36 — Recitals of warrant determines its sufficiency, where it alone is relied on.
    Where executive warrant alone is relied on in extradition proceedings, its recitals are determinative of its sufficiency.
    12. Extradition <@=>36 — Executive warrant for extradition of defendant held sufficient; “commitment.”
    Executive warrant for extradition of'defendant, reciting that it was accompanied by copy of penitentiary commitment authenticated by Governor of demanding state, though not referring to indictment or affidavit, held ¡sufficient, in view of Code Cr. Proe. 1911, arts. 308, 309, 310, 311, 871, 879, 880; it being presumed in support of warrant that commitment may have contained, in authentic manner, all the requisites to show that defendant was under conviction of an extraditable crime in demanding state, “commitment” being defined as authority for holding in prison one convicted of crime.
    [Ed. Note. — For other defiifitions, see Words and Phrases, First and Second Series, Commitment.]
    13. Extradition <&wkey;35 — Burden on defendant to show' that “commitment” was insufficient to support warrant of extradition.
    If commitment filed by Governor of demanding state with requisition for extradition of defendant was insufficient in law to support warrant, burden was on defendant to introduce the papers in evidence.
    14. Habeas corpus <&wkey;l 13(12) — Refusal to postpone habeas corpus hearing to secure papers acompanying demand for extradition not error, where proof of contents not shown.
    Defendant’s complaint that he was prevented from exhibiting papers accompanying demand for his extradition by trial court’s refusal to postpone habeas corpus hearing wás without avail, where he failed to bring before appellate court, by motion for new trial or bill of exceptions, proof of contents of such papers.
    15. Evidence* <&wkey;83(D— Extradition proceedings presumed regular, in absence of papers accompanying demand.
    In absence of papers accompanying demand for extradition of defendant, presumption of regularity prevails.
    Appeal from Criminal District Court No. 2, Dallas County; C. A. Pippin, Judge.
    Habeas corpus by Z. H. Haynes, alias J. A. Martin, to secure his release under an extradition warrant. From an order remanding him to agent designated to return him to demanding state, defendant appeals.
    Affirmed.
    G. W. Lindsey, of Dallas, for appellant.
    Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State’s Atty., both of Austin, for the State.
   HAWKINS, J.

Application was made to the Governor, of this state by the Governor of New Mexico for an extradition warrant authorizing the return of relator to the latter state as a fugitive of justice therefrom. Upon habeas corpus hearing before Hon. ■ C. A. Pippin, judge of criminal district court No. 2 of Dallas, relator was remanded to the agent designated to return him to the demanding state. From this order the appeal is brought.

Upon the hearing the only evidence introduced was the official designation by the Governor of New Mexico of S. W. Fletcher as agent to receive relator and return him to the 'demanding state, and the executive warrant of the Governor of this state authorizing extradition.

The warrant recites:

“Whereas, it has been made known to me by the Governor of the state of New Mexico that John T. Martin stands convicted before the proper authorities with the crime of forgery, and who stands committed to the state penitentiary in said state, and that the said defendant has taken refuge in the state of Texas; and * * * whereas, said demand is accompanied by copy of said penitentiary Commitment duly certified as authentic by the Governor of said state. * * * ”

Relator complains that the warrant is insufficient in failing to show that the conviction in New Mexico was upon an affidavit or indictment. If the warrant itself reveals that it was based upon an insufficient demand, or if upon the trial it be shown that the papers accompanying the demand are insufficient to authorize the extradition warrant, relator will not be held thereunder (Ex parte Holt, 92 Tex. Cr. R. 614, 244 S. W. 1016), hut, if not defective on its face, the authorities uniformly hold that in a habeas corpus trial the Governor’s warrant malíes a prima facie case for the respondent (Ex parte Nix, 85 Tex. Cr. R. 307, 212 S. W. 507; Ex parte Carroll, 86 Tex. Cr. R. 301, 217 S. W. 382, 8 A. L. R. 901; Ex parte McDaniel, 76 Tex. Cr. R. 184, 173 S. W. 1019, Ann. Cas. 1917B, 335; Ex parte White, 39 Tex. Cr. R. 499, 46 S. W. 639). The warrant here says in effect that the executive has been advised by the Governor of New Mexico that relator had been convicted in that state of forgery, and had been committed to the penitentiary under such conviction, and that said commitment to the penitentiary accompanied the demand. This warrant, we are constrained to believe, was sufficient to authorize the trial court in holding relator. It is not necessary for the warrant to recite the contents' or effect of papers which accompany the demand, and in their absence from the record we must assume that they presented to the Governor of the fugitive state sufficient and legal grounds upon which to base his action. Under such circumstances the burden is on relator to show to the court that the Governor was acting upon insufficient data in granting the warrant.

Relator complains because the court declined to grant a postponment of the hearing, it being recited in the bill bringing the matter forward for review that the attorney for relator had requested the .Governor, in the event he issued a warrant of extradition, to notify said attorney, and that upon receipt of such information from the Governor said attorney had requested- the secretary of state to furnish certified copies of the .requisition and all accompanying papers; that he had not at the time of trial received them. These transactions occurred on the evening of September 1st, and the habeas corpus hearing was upon September 3d. Nothing appears in the record showing that the papers accompany the requisition revealed any fact which would be available to relator in resisting the extradition proceedings, and we cannot assume that they revealed any such matter. The same rule applies here as in other cases, to wit, that the duty is upon one complaining of a ruling of the court to show that error was committed, which was detrimental to the party complaining thereof. By the use of proper diligence certified .copy of these papers could have been secured and attached to motion for new trial before the judge hearing this case, and, if they revealed matters available to relator, they could then have been brought to this court by a proper bill, and we would have been in a position to have passed upon the matter.

The judgment remanding relator for removal to the state of New Mexico is affirmed.

On Motion for Rehearing.

MORROW, P. J.

In Ex parte Stanley, 25 Tex. Cr. App. 372, 8 S. W. 647, 8 Am. St. Rep. 440, the rule is thus stated:

“Where the papers upon which a warrant of extradition is issued are withheld by the executive, the warrant itself can only be looked to for the evidence that the essential conditions of its issuance have been complied with, and it is sufficient if it recites what the law requires.”

These recitals should embrace the substance of the documents upon which the Governor of the asylum state determines that the alleged fugitive was charged in the demanding state with an extraditable offense. Ordinarily, these documents should be such as would enable the Governor issuing the warrant to state therein that the person was charged by indictment or affidavit. Ex parte Dawson, 83 F. 306, 28 C. C. A. 354. A recital, however, showing that the documents before the Governor issuing the warrant disclosed the conviction of the fugitive of a crime within the purview of the law would suffice.

When a prosecution is initiated and pursued to the judgment of conviction the accused is “charged” within the meaning of the United States Constitution. The announcement to the contrary in Ex parte Lewis, 75 Tex. Cr. R. 320, 170 S. W. 1098, is deemed unsound. Upon this subject the reasoning of Judge Ramsey and of the writers of the opinions cited in Bergman’s Case, 60 Tex. Cr. R. 8, 130 S. W. 174, seems conclusive. Other cases in point are Ex parte Holt, 92 Tex. Cr. R. 614, 244 S. W. 1016; Ex parte Carroll, 86 Tex. Cr. R. 301, 217 S. W. 382, 8 A. L. R. 901; Drinkall v. Spiegel, Sheriff, 68 Conn. 441, 36 A. 830, 36 L. R. A. 486. The idea that in authorizing the extradition of persons “charged” with crime the Constitution of the United States excludes those who have been convicted of crime does violence to the intent and leads to a construction of the language of the Constitution at war with its evident purpose. Hughes v. Pflanz, 71 C. C. A. 234, 138 F. 980; Ex parte Reggel, 114 U. S. 642, 5 S. Ct. 1148, 29 L. Ed. 250; Roberts v. Reilly, 116 U. S. 80, 6 S. Ct. 291, 29 L. Ed. 544; Lau Ow Bew v. United States, 144 U. S. 47, 12 S. Ct. 517, 36 L. Ed. 340; Barranger v. Baum, 103 Ga. 475, 30 S. E. 524, 68 Am. St. Rep. 122.

In the present case the Governor’s warrant alone is relied upon, and its recitals are determinative of its sufficiency. It recites that it has been made known to the Governor that the relator “stands convicted before the proper authorities with the crime of forgery, and stands committed to the penitentiary in the demanding state.” We quote all that is found in the executive warrant upon the subject of authority:

“Whereas, it has been made known to me by the Governor of the state of New Mexico that John T. Martin stands convicted before the proper authorities with the crime of forgery, and who stands committed to the state penitentiary in said state,” etc.
“Whereas said demand is accompanied by copy of said penitentiary commitment duly certified as authentic by the Governor of said state.” . )

It must be noted that the only document to which reference is made in the Governor’s warrant as accompanying the demand or as evidence upon which the warrant is issued is a copy of the “commitment” authenticated by the Governor of the demanding state. No reference is made to an indictment or affidavit, and the only evidence of conviction of crime seems to be that obtained from the certified copy of the commitment mentioned. Therefore the question presented is the sufficiency of this recital.

In Webster’s New International Dictionary the signification ascribed to the word “commitment” is “a warrant for imprisonment; a mittimus.” As defined in the same book, a “mittimus” is “a warrant of commitment to prison.” In court decisions and law books a commitment is described as a warrant, process, or order issued by or upon the authority of a court, directing an executive officer to confine a person named in prison for a stated time or until the happening of some named event. See 8 Cyc. 336; 12 Cyc. 304; 19 Cyc. 651. Also Million v. Allen, 187 Mo. 560, 86 S. W. 144; People v. Pitts, 111 App. Div. 319, 97 N. Y. Supp. 509; 1 Words and Phrases, Second Series, p. 796; Com. v. Barker, 133 Mass. 399. It seems that a “commitment” is a process performing substantially the same office as that which in our own state is called a “capias.” (see Webster’s New International Dictionary); that is, the authority for holding in prison one convicted of crime. See C. C. P. arts. 308, 309, 310, 311, also articles 871, 879, 880.

It is conceived that the commitment upon which the Governor of this state acted in issuing the warrant in question may have contained, in an authentic maimer, all the requisites of the law to show that the relator was under conviction of an extraditable crime in tlie demanding state. Conceding that the nature of the “commitment” was such as might have such effect, the presumption prevails in support of the warrant that it did so. If the “commitment” filed by the Governor with the requisition was not in law-sufficient to support the warrant, the burden under the law was upon the relator to introduce the papers in evidence. His complaint that he was prevented from exhibiting them in the trial court by the refusal to postpone cannot avail him for the reason that he has failed to bring before this court, by motion for new trial or by bill of exceptions, proof of the contents of the documents mentioned. In their absence, the presumption of regularity prevails.

The motion is overruled. 
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