
    Ex parte PONZI.
    (No. 10567.)
    (Court of Criminal Appeals of Texas.
    Oct. 27, 1926.
    Rehearing Denied Jan. 26, 1927.)
    1. Habeas corpus &wkey;>85(2) — Burden is on ha-beas corpus relator to overcome presumption that extradition warrant was authorized.
    Burden is on applicant for writ of habeas corpus to overcome presumption that the Governor’s formal extradition warrant was issued upon proper authority.
    2. Habeas corpus <&wkey;85(2) — Presumption that Governor’s extradition warrant was authorized held not overeóme.
    Certificate of Secretary of State, accompanied by copy of an indictment filed in another state with application for extradition, held not to overcome presumption that Governor’s formal extradition warrant was issued on proper authority, in. absence of anything in certificate or proof to support contention that such copy was not properly authenticated or any showing that' there were no other papers adequate to support warrant before Governor at time of granting requisition.
    3. Extradition <§=>39 — Governor need not file all papers acted on in granting requisition.
    The Governor need not file with the secretary of state all papers acted on in granting a requisition for a fugitive from justice.
    4. Extradition <&wkey;32 — Claim that indictment charged no offense may he dismissed, in absence of proof that extradition warrant was improperly issued.
    As validity of executive warrant for extradition of fugitive from justice cannot be successfully, attacked, in absence of proof that it was improperly issued, claim that indictment filed in requisitioning state charged no offense may be dismissed.
    5. Extradition <&wkey;32 — Claim, founded on presumption that two state’s laws are identical, that indictment was insufficient to charge theft, held without merit, in view of affirmative showing that foreign state’s law authorizes amendment.
    Claim, based on presumption that laws of Massachusetts and Texas are identical, that copy • of indictment in former state was not sufficient to charge theft, held without merit, in view of affirmative showing that Massachusetts law, unlike that of Texas, authorizes amendment of indictment setting out particulars of transaction relied on.
    6. Haheas corpus <&wkey;92(2) — Indictment purporting to charge extraditable offense cannot be collaterally attacked by habeas corpus.
    A collateral attack by way of habeas corpus cannot prevail against an indictment purporting to charge an offense within the purview of extradition statute, ■ except possibly where treaty relations are involved.
    
      7. Aliens <&wkey;4 — -Arrest of Italian citizen by deputy sheriff at custom house, to which sent from Italian vessel by arrangement with deputy, held not to violate treaty with Italy.
    Apprehension of Italian citizen by Texas deputy sheriff at New Orleans custom house, to which he was sent from an Italian vessel in port by the second officer, on a custom house officer’s request by arrangement with such deputy, held not violative of treaty with Italy; seizure being by trespasser, not by the government or any authorized agent thereof.
    8. International law <§=>5 — Private ship is subject to laws of country visited, in absence of treaties to contrary.
    A private ship, entering a foreign jurisdiction, becomes subject to the laws and control of the country visited, in absence of treaty stipulations to contrary, and any crime committed there may be punished by local laws.
    9. Habeas corpus <&wkey;l3 — That fugitive from justice was kidnapped in another state without governmental authority is no reason for release on habeas corpus.
    
    That a fugitive from justice, brought into Texas, was kidnapped in another state by an individual not acting under governmental authority, is no reason for releasing him from custody in a habeas corpus proceeding.
    10. Criminal law <&wkey;99 — Fugitive from justice, taken into custody by individual’s trespass, is not immune from prosecution, though first brought to another state than that fled from.
    Fugitive from justice has no absolute right of asylum, and fact that he comes into custody by the trespass of an individual affords him no immunity from prosecution, though he was first taken to another state than that from which he fled; his remedy being to proceed against the trespasser or kidnapper.
    On Motion for Rehearing.
    11. Extradition <&wkey;42— How one in custody under extradition warrant got into state is immaterial.
    In habeas corpus proceedings by one held in custody under extradition warrant issued by Governor, on requisition from the Governor of another state, it is immaterial how relator got into state.
    12. Habeas corpus c&wkey;90 — Ordinary trial rules, do not govern in habeas corpus'proceedings.
    In habeas corpus matters, the court is not governed by the ordinary rules or forms of trial.
    13. Habeas corpus <&wkey;90 — Permitting evidence of requisitioning state’s statutes after close of evidence in habeas corpus proceedings for release from custody under extradition warrant held not error.
    Permitting introduction in evidence of statutes of another state, after both sides had closed introduction of testimony in habeas corpus proceedings by one in custody under ex-, tradition warrant, held not error, in absence of showing that court refused to permit relator to introduce evidence on same question.
    Í4. Extradition <&wkey;>32 — Indictment held sufficient, under Massachusetts laws, to charge theft by one in custody under extradition warrant (G. L. Mass. c. 277).
    In habeas corpus proceedings for release from custody under extradition warrant, issued on requisition from the Governor of Massachusetts, indictment charging that relator stole a certain sum of money from a certain person held sufficient, under G. L. Mass. c. 277, to chai%e theft, especially in view of provisions thereof as to furnishing bill of particulars, and amending such bill, indictment, etc.
    Appeal from District Court, Harris County ; Chas. E. Ashe, Judge.
    Application by Charles Ponzi for a writ of habeas corpus. From a judgment remanding relator to custody, he appeals.
    Affirmed.
    Heidingsfelder, Kahn & Branch, of Hous-' ton, for appellant.
    O’Brien Stevens, Asst. Dist. Atty., of Houston, Alfred R. Shrigley, Asst. Atty. Gen., for Commonwealth of Massachusetts, J. F. Wol-ters, of Houston, Sam D. Stinson, State’s Atty., of Austin, and Robt. M. Eyles, Asst. State’s Atty., of Groesbeck, for the State.
   MORROW, P. J.

The appeal is from an order refusing to discharge the relator upon a writ of habeas corpus.

The writ was issued by a district judge. In the return of the sheriff, it is made to appear that the relator was detained by virtue of an executive warrant issued by the Governor of this state upon the requisition of the Governor of the state of Massachusetts.

According to the testimony, relator, ai Tampa, Fla., boarded a freighting vessel known as Sic Vos Non Vobis, which was under Italian registration, flying the Italian flag, and apparently manned by Italian subjects. Relator was employed for service on the vessel which was bound for Italy, but which stopped at New Orleans, La. While there, one George Lacy, a deputy sheriff of Texas, who, having no papers for the arrest of the relator and no connection with the constabulary of the state of Louisiana, arranged with a custom house officer at New Orleans to induce some person in authority on the vessel to send the relator ashore.' The custom house officer went aboard the'vessel and requested the second officer in charge to send the relator to the custom house for the purpose of having papers touching the cargo authenticated. The second officer directed the relator to go to the custom house, and accompanied him thereto. Upon their arrival at the custom house, the relator was forcibly taken in custody by George Lacy, who after-wards took him to a hotel and then brought him to the city of Houston, Tex., where complaint was made charging that he was a fugitive from justice. Relator applied for a writ of habeas corpus, but, before the hearing took place, the Governor of this state issued an executive warrant upon the requisition of the Governor of the state of Massachusetts. There is some slight conflict in the evidence but the foregoing is a sufficient preliminary statement of the facts.

The executive warrant issued by the Governor of this state is formal in every particular. The burden, therefore, rests upon relator, by evidence, to overcome the presumption that it was issued upon proper authority. See Ex parte Haynes, 98 Tex. Cr. R. 609, 267 S. W. 490; Ex parte Nix, 85 Tex. Cr. R. 307, 212 S. W. 507; Hibler v. State, 43 Tex. 197; Ex parte Denning, 50 Tex. Cr. R. 629, 100 S. W. 401; Ex parte Roselle, 87 Tex. Cr. R. 470, 222 S. W. 248; Ex parte Cragolla, 97 Tex. Cr. R. 10, 260 S. W. 189. In the present case, to rebut the presumption, the certificate of the secretary of state of Texas, accompanied by. a copy of the indictment filed in the state of Massachusetts with the application for extradition, is relied upon. In neither the certificate nor the proof is there found anything to support the contention that the copy of the indictment was not properly authenticated. Nor does it appear from the entire record that there were not before the Governor, at the time of the granting of the requisition, papers independent of the certified copy mentioned adequate to support the Governor’s warrant. The law did not demand that the Go'vernor file with the secretary of state all papers in her possession upon which she acted in granting the rquisition. Nor, as above stated, does the certificate of the secretary of state nor the proof show that there was not filed with her by the Governor other papers which induced her action. Under these circumstances the presumption mentioned is not overcome. See Ex parte Carroll, 86 Tex. Cr. R. 301, 217 S. W. 382, 8 A. L. R. 901; Ex parte Roselle, 87 Tex. Cr. R. 470, 222 S. W. 248; Ex parte Jones, 82 Tex. Cr. R. 627, 199 S. W. 1110; Ex parte Haynes, 98 Tex. Cr. R. 609, 267 S. W. 490.

Upon the remarks and authorities last above made, the claim of the appellant that the indictment charges no offense might be dismissed, because, in the absence of proof that it was improperly issued, the validity of the executive warrant cannot be successfully attacked. The claim that the copy of the indictment which was exhibited upon the trial charged no offense is based upon the presumption that the law of Massachusetts and that of Texas are identical, and that the averment, “did steal money of the amount of the value of $1,000,” would, under the law of Texas, not be sufficient to charge the offense of theft. Upon this subject we are not left to presumption, for it affirmatively appears that the statutory law of Massachusetts, unlike that of Texas, authorizes an amendment of an indictment setting out the particulars of the transaction upon which the prosecution is founded. Moreover, we do not understand that a collateral attack by way of habeas corpus can prevail against an indictment which purports to charge an offense coming within the purview of the statute upon the subject of extradition. There may be exceptions to this rule where treaty relations are involved. Ex parte Royall, 117 U. S. 241, 6 S. Ct. 734, 29 L. Ed. 868. But the general rule precludes an inquiry into the validity of an indictment on account of the verbiage in which it attempts to charge the offense. See Henry v. Henkel, 235 U. S. 219, 35 S. Ct. 54, 59 L. Ed. 204; Royall v. Virginia, 121 U. S. 104, 7 S. Ct. 826, 30 L. Ed. 883; Ex parte Pearce, 32 Tex. Cr. R. 301, 23 S. W. 15; Pearce v. Texas, 155 U. S. 311, 15 S. Ct. 116, 39 L. Ed. 164; Ex parte Nix, 85 Tex. Cr. R. 309, 212 S. W. 507.

Against the detention the point is made that the relator is a citizen of the kingdom of Italy and that his apprehension under the circumstances above named was violative of the treaties between the United States of/America and the kingdom of Italy. The treaty names the extraditable offenses agreed upon, and fails to mention the offense of theft or larceny. Prom the treaty (17 Stat. 853) the following quotation is taken:

“Article 17. — All vessels sailing under the flag of the United States, and furnished with such papers as their laws require, shall be regarded in Italy as vessels of the United States, and, reciprocally, all vessels sailing under the flag of Italy, and furnished with the papers which the laws of Italy require, shall be regarded in the United States as Italian vessels.”

The articles referred to and that quoted are the only parts of the treaty which were set up in the pleading or proved upon the trial. We have not been referred to, nor are we aware of, any authority which would bring the present transaction within any of the exceptions or exemptions to the operation of the applicable principles of international law, which we find stated in a textbook thus:

“But, when a private ship enters a foreign jurisdiction, it becomes at once, with all on board, in the absence of treaty stipulations to the contrary, subject to the laws and control of the country it visits, and any crime committed there may be punished by the local laws, for the right to enter on and navigate the waters of any country is subject, in all cases, to the condition of temporary obedience to its laws.” Ruling Case Law, vol. 8, § 64, p. 103.
“It is a part of the law of civilized nations that, when a merchant vessel of one country enters the ports of another for the purposes of trade, it subjects itself to the law of the place to which it goes, unless by treaty or otherwise the two countries have come to some different understanding or agreement. As the owner has voluntarily taken his vessel for his own private purposes to a place within the dominion of a government other than his own, and from which he seeks protection during his stay, he owes that government such allegience for the time being as is due for the protection to which he becomes entitled. It has been the uniform practice for the courts of the country of which the port is part to punish crimes committed by one foreigner on another in a foreign merchant ship.” Ruling Case Law, vol. 15, § 49, p. 136.

Upon this proposition, see, also, Exchange v. M’Faddon, 7 Cranch, 116, 3 L. Ed. 287; Wildenhus’ Case, 120 U. S. 1, 7 S. Ct. 385, 30 L. Ed. 565; United States v. Diekelman, 92 U. S. 520, 23 L. Ed. 742; Mahon v. Justice, 127 U. S. 700, 8 S. Ct. 1204, 32 L. Ed. 283; Barrington v. Missouri, 205 U. S. 483, 27 S. Ct. 582, 51 L. Ed. 890; Dallemagne v. Moisan, 197 U. S. 169, 25 S. Ct. 422, 49 L. Ed. 709.

We are not called upon to determine the status of the relator, had he been arrested by authority of the United States government or the state government upon the vessel in port, nor if he had been seized by a trespasser while upon the vessel. He was not upon the vessel. He was not seized by the government at all or any authorized agent of the government. Lacy, in seizing the relator, was a trespasser. See Ker v. Illinois, 119 U. S. 436, 7 S. Ct. 225, 30 L. Ed. 421; Dominguez v. State, 90 Tex. Cr. R. 92, 234 S. W. 79, 18 A. L. R. 503. Moreover, the evidence adduced upon the habeas corpus hearing would sustain the conclusion that the relator’s apprehension and detention was not without the consent but with the acquiescence of an officer of the ship who directed the relator to go with him to the custom house.

The relator.’s situation before the courts of this state is that of one who was abducted or kidnapped in another state and brought into this one. The fact that one was kidnapped in another state by an individual not acting under the governmental authority is not regarded in this state' as a reason for releasing a fugitive from justice in a habeas corpus proceeding. See Brookin v. State, 26 Tex. App. 121, 9 S. W. 735; Ex parte Wilson, 63 Tex. Cr. R. 281, 140 S. W. 98, 36 L. R. A. (N. S.) 243; Ex parte Bergman, 60 Tex. Cr. R. 8, 130 S. W. 174; Innes v. Tobin, 240 U. S. 127, 36 S. Ct. 290, 60 L. Ed. 562; Ker v. Illinois, 119 U. S. 436, 7 S. Ct. 225, 30 L. Ed. 421; Lascelles v. Georgia, 148 U. S. 543, 13 S. Ct. 687, 37 L. Ed. 549; Mahon v. Justice, 127 U. S. 700, 8 S. Ct. 1204, 32 L. Ed. 283; Kingen v. Kelley, 3 Wyo. 566, 28 P. 36, 15 L. R. A. 177; Baker v. State, 88 Wis. 147, 59 N. W. 570.

It is argued that the precedents in support of the right of a state to proceed to try a fugitive from justice, who was abducted or kidnapped in a’ foreign country and brought directly into the state in which he is charged with crime, are not applicable to the present facts, for the reason that the relator, upon his abduction, was not taken into the state of Massachusetts, where he was charged with an offense, but was first taken to Louisiana and then to Texas. The principle upon which the precedents mentioned rests is that a fugitive from justice has no absolute right of asylum. The fact that he comes into custody by the trespass of an individual affords him no immunity from prosecution. His remedy is not to avoid a trial under the indictment against him) but to proceed against the trespasser or kidnapper. This was definitely announced by the Supreme Court of the United States in Ker’s Case, supra. The identical point raised by the relator, namely, that, while he would be amenable to prosecution in Texas, there would be no jurisdiction of the Texas courts to surrender him upon the requisition of the state of Massachusetts, has not come to our attention. However, oh the facts, the case of Ker v. Illinois, supra, is not dissimilar. Ker was seized in Peru by one Julian, and was carried to the state of California. After his arrival in California, and while still a prisoner of Julian, Ker was surrendered to the agent of the state of Illinois upon a warrant issued by the Governor of California upon the requisition of the Govern- or of Illinois. His conviction in the court of the state of Illinois was affirmed by the Supreme Court of the United States. The principle there announced has been applied by the courts in many instances. See Rose’s Notes on U. S. Rep. Revised Edition, vol. 13, p. 699.

Our investigation of the facts and authorities leads us to the conclusion that it is the duty of this court to affirm the judgment remanding the relator to custody, which is accordingly done.

On Motion for Rehearing.

LATTIMORE, J.

Most of the complaints appearing in relator’s motion for rehearing would have both force and application if the relator was now held by the officers, as in the attitude when he was first brought into Texas, but he is not now so held. He is in custody only by virtue of an executive warrant, issued by the Governor of this state upon requisition from the Governor of Massachusetts. It is in testimony that, when arrested in Louisiana relator agreed, when offered the privilege of going to jail in Louisiana or being brought to Texas, that he be brought to Texas. It is immaterial, as we view the decision of this question, how the relator got into Texas. We are not impressed by any claim that he was kidnapped or forcibly brought into either Louisiana or Texas.

Relator complains that we did not pay any attention to a bill of exceptions taken by him to the action of the trial court in permitting the respondent to introduce in evidence a part of the statutes of Massachusetts, after both sides had closed the introduction of testimony. It is the universal holding of this court that in habeas corpus matters we are not governed by ordinary rules or forms of trial. The matters involved are before the court, and we conceive it proper for the court to obtain and have before him all the light possible before he rules upon the question involved in the application for habeas corpus. We would have to be convinced that the trial court had permitted one side to introduce some evidence, and had then refused the opposite side the opportunity to introduce its evidence upon the same question, before we would consider such* complaint of the manner of the trial.

Relator complains again of the insufficiency of the indictment, a copy of which was presented to the Governor of Texas and appears in this record. Under the laws of Massachusetts it is not necessary that an indictment for theft do more than to state that the accused did steal a certain sum of money from a certain person. This appears in the indictment in question. See chapter 277, General Laws of Massachusetts 1921; Commonwealth v. Quinn, 222 Mass. 504, 111 N. E. 405. In said chapter 277 appear numerous statutory provisions relating to the furnishing of the accused with a bill of particulars if he desires to know more in detail the charge against him, and for amending» both the bill of particulars, indictment, etc.

Being unable to agree with any of relator’s contentions, and conceiving that the case has been properly disposed of, relator’s ■ motion for rehearing will be overruled. 
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