
    Ex parte McDANIEL.
    (No. 3439.)
    (Court of Criminal Appeals of Texas.
    Feb. 3, 1915.)
    1. Habeas Corpus &wkey;>92 — Scope op Hearing —Interstate Extradition. '
    The court, on habeas corpus by one in custody under a requisition warrant for his arrest as a fugitive from the justice of another state, will not go into the facts of his guilt or innocence of the offense charged by the demanding-state.
    [Ed. Note. — For other eases, see Habeas Corpus, Cent. Dig. §§ 81, 83, 87-96; Dec. Dig. 92.]
    2. Extradition <&wkey;-30 — Interstate Extradition — “Fugitive prom Justice.”
    A person who commits a crime in one state and departs therefrom and is found in another is a “fugitive from justice.”
    [Ed. Note. — For other cases, see Extradition, Cent. Dig. § 32; Dec. Dig. i5&wkey;30.
    For other definitions, see Words and Phrases, First and Second Series, Fugitive from Justice.]
    3. Habeas Corpus <&wkey;85 — Interstate Extradition.
    , An. extradition warrant for the arrest of a fugitive from the justice of the demanding state makes a prima facie case on habeas corpus for the discharge of accused, and the burden is on him to show that the warrant was not legally issued.
    [Ed. Note. — For other cases, see Habeas Corpus, Cent. Dig. §§ 77, 78; Dec. Dig. &wkey;>85.]
    4. Extradition &wkey;>36 — Interstate Extradition — Warrant—Complaint.
    An extradition warrant, which recites that the demand was accompanied by a “complaint,” instead or by a copy of an affidavit duly certified as authentic by the Governor of the demanding state, is sufficient on habeas corpus.
    [Ed. Note. — For other cases, see Extradition, Cent. Dig. §§ 40-43; Dec. Dig. &wkey;36.]
    5. Extradition &wkey;>36 — Interstate —Valid - ity — Presumptions.
    An extradition warrant, which recites that accused stands charged by complaint before the proper authorities of the demanding state and that the demand is accompanied by a copy of a complaint sworn to before a justice of the peace, duly certified as authentic by the Governor of the demanding state, presents a prima facie case of the authority of a justice of the peace to act as magistrate, and accused has the burden of showing the contrary to obtain his discharge on habeas corpus.
    [Ed. Note. — For other cases, see Extradition, Gent. Dig. §§ 40-43; Dee. Dig. &wkey;536.]
    6. Habeas Corpus &wkey;>103 — Persons Subject to Extradition — Persons Charged with Crime.
    Where accused detained under an extradition warrant sought his discharge on habeas corpus and showed that two indictments found in the state were pending against him, the court must order the detention of accused until the indictments are disposed of, with direction for his delivery under the extradition warrant.
    [Ed. Note. — For other cases, see Habeas Corpus, Cent. Dig. §§ 90, 91; Dec. Dig. tg=^103.J
    Appeal from District Court, Fannin County ; Ben 1-1. Denton, Judge.
    Application for habeas corpus by W. L. McDaniel for his discharge from custody under an extradition warrant.
    From a judgment remanding him to custody, he appeals. Affirmed, and relator remanded to the custody of the sheriff to be dealt with in accordance with the opinion.
    Cunningham & McMahon, of Bonham, for appellant. R. T. Lipscomb, Dist. Atty., of Bonham, and C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Upon application made by the Governor of New Mexico, his excellency, Governor O. B. Colquitt, granted the requisition, in language as follows:

“In the Name and by Authority of the State of Texas.

“Executive Department.
“To All and Singular the Sheriffs, Constables, and Other Civil Officers of Said State:
“Whereas, it has been made known to me by the Governor of the state of New Mexico that W. L. McDaniel stands charged by complaint before the proper authorities, with the crime of drawing and uttering a worthless draft in the sum of four hundred dollars committed in said State, and that the said defendant has taken refuge in the state of Texas, and whereas, the said Governor, in pursuance of the Constitution and laws of the United States, has demanded of me that I cause the said fugitive to be arrested and delivered to James W. Johnson, who is as is satisfactorily shown, duly authorized to receive him into custody and convey him back to said state, and whereas, said demand is accompanied by copy of said complaint duly certified as authentic by the Governor of said state:
“Now, therefore, I, O. B. Colquitt, Governor of Texas, by virtue of the authority vested in me by the Constitution and laws of this state and the United States do issue this my warrant, commanding all sheriffs, constables, and other civil officers of this state, to arrest and aid and assist in arresting said fugitive and to deliver W. L. McDaniel when arrested .to the said agent in order that he may be taken back to said state to be dealt with for said crime.
“In testimony whereof, I have hereunto signed my name and have caused the seal of state to' be hereon impressed, at Austin, Texas, this 14th day of January, A. D. 1015.
“[L. SJ O. B. Colquitt, Governor. “By the Goveimor:
“D. A. Gregg, Secretary of State.”

Under this authority relator was arrested and delivered to Mr. Johnson. Relator sued out a writ of habeas corpus before Judge Denton. When a hearing was had, Judge Denton remanded the relator to the custody of Mr. Johnson, from which judgment he prosecutes this appeal.

Upon the hearing relator desired to go into the facts upon which the complaint or affidavit was founded, and show that he was guilty of no offense. This the court declined to permit him, and he presents this matter for review by bills of exception. It has been uniformly held by this court and the Supreme Court of the United States that the question of the guilt or innocence of a person of the offense charged will not be inquired into on habeas corpus in this character of ease. This question came before the Supreme Court recently in the case of Drew v. Thaw, 235 U. S. 432, 35 Sup. Ct. 137, 59 L. Ed. -, and it was held that on the habeas corpus hearing the question of guilt or innocence will not be inquired into; that court saying:

“When, as here, the identity of the person, the fact that he is a fugitive from justice, the demand in due form, the indictment by a grand jury for what it and the Governor of New York allege to be a crime in that state, and the reasonable possibility that it may be such, all appear, the constitutionally required surrender is hot to be interfered with by the summary process of habeas corpus upon speculations as to what ought to be the result of a trial in the place where the Constitution provides for its taking place. We regard it as too clear for lengthy discussion that Thaw should be delivered up at once.”

In the same case the coiu’t also passed on the question that motive of the person in leaving the demanding state was wholly immaterial, it holding:

“If the conspiracy constituted a crime, there is no doubt that Thaw is a fugitive from justice. He was a party to the crime in New York and afterwards left the state. It long has been established that, for purposes of extradition between the states, it does not matter what motive induced the departure. Roberts v. Reilly, 116 U. S. 80, 6 Sup. Ct. 291, 29 L. Ed. 544; Appleyard v. Massachusetts, 203 U. S. 222, 226, 227, 27 Sup. Ct. 122, 51 L. Ed. 161-163, 7 Ann. Cas. 1073.”

In Denning v. State, 50 Tex. Cr. R. 629, 100 S. W. 401, this court held it was not error to refuse to hear evidence as to the guilt or innocence of the defendant, that being a question for the courts of the demanding state, the court saying:

“The question of the guilt of relator or any other ulterior purpose behind the prosecution cannot be inquired into.”

In Coleman’s Case, 53 Tex. Cr. R. 99, 113 S. W. 17, and Hibler’s Case, 43 Tex. 201, this court and the Supreme Court have both held that a person who commits a crime in one state and departs therefrom, and is found in another state, may be regarded as a fugitive from justice.

There is no contention that relator was not in the state of New Mexico when the crime charged is alleged to have been committed, and subsequently left and came to this state.

While in Cheatham’s Case, 50 Tex. Cr. R. 53, 95 S. W. 1077, it is held that the courts may go behind the Governor’s warrant and review the grounds upon which the Governor may have issued the warrant, and in that case, because the offense was alleged in the affidavit “upon information and belief” the relator was discharged, in this case the affidavit contains no such words; it being in the following language:

“State of New Mexico v. W. L. McDaniel.
“State of New Mexico, County of Chaves.
“On this 26th day of December, A. D. 1914, personally appeared Roy Ammerman before the court of R. D. Bell, justice of the peace in and for precinct No. 2 of the county of Chaves, in the state of New Mexico, and after having been duly sworn in conformity with law says that W. L. McDaniel did violate the laws of New Mexico by giving to the First State Bank & Trust Company of Roswell, N. M., a check or draft in the sum of $400.00 on the Farmers’ Bank of New Hope, Tex., and receiving the money on same knowing the same would not be paid, and that this happened on or near Roswell of the 10th day of December, A. D. 1914, in the county of Chaves and state of New Mexico, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the state of New Mexico.
“[Signed] Roy Ammerman, Complainant.
“Sworn to and subscribed before me on this 26th day of December, A. D. 1914.
“[Signed] R. D. Bell, Justice of the Peace.”

And while it is held that the courts may go behind the Governor’s warrant, yet it has always been held that the warrant issued by the Governor makes a prima facie case on habeas corpus,, and the burden is on the defendant to show that the warrant was not legally issued. White v. State, 39 Tex. Cr. R. 499, 46 S. W. 639; Hibler v. State, 43 Tex. 202; Stanley v. State, 25 Tex. App. 378, 8 S. W. 645, 8 Am. St. Rep. 440.

Relator indulges in a criticism of the Governor’s warrant for using the word “complaint,” instead of reciting that the “demand was accompanied by a copy of an affidavit duly certified as authentic by the Governor of Now Mexico.” This question was decided adversely to' relator’s contention in the case of Ex parte White, 39 Tex. Cr. R. 499, 46 S. W. 639. In addition to this, the complaint or affidavit was introduced in evidence, as hereinbefore shown, and it is such an affidavit as is required by law.

Relator also contends that, as the affidavit was sworn to before a justice of the peace, it was incumbent on the state to show affirmatively that under the laws of New Mexico a justice of the peace is a “magistrate” in that state. As the Governor’s warrant recites “relator stands charged by complaint before the proper authorities, and whereas said demand is accompanied by a copy of the complaint duly certified as authentic by the Governor of that state,” it presents a prima facie case, and, if in fact a justice of the peace is not a magistrate in New Mexico, it was incumbent upon relator to show that fact. Stanley v. State, 25 Tex. App. 378, 8 S. W. 645, 8 Am. St. Rep. 440; White v. State, 39 Tex. Cr. R. 499, 46 S. W. 639.

The only other question we deem it necessary to discuss is the one wherein relator shows there are two indictments pending against him in the district court of Eannin county; that he has been arrested on such indictments, and given bond, and he contends that he.should not be turned over to the New Mexico authorities while such indictments are pending. This record discloses that the two indictments are pending in the court over which Judge Denton presides ; that he was the judge who heard the application for habeas corpus, and, when relator introduced the two indictments in evidence, the district attorney filed motions asking leave to dismiss both of said cases, giving reasons therefor, with the knowledge and consent of the district judge. In approving the bill showing these facts, Judge Denton states when the district attorney filed those motions to dismiss the cases, and he consented and agreed that he might do so, the relator objected to it being done in vacation, and this is the only reason why the order of dismissal was not entered at that time. He further states that the order of dismissal will be entered in term time. In the case of Ex parte Hobbs, 32 Tex. Cr. R. 318, 22 S. W. 1035, 40 Am. St. Rep. 782, wherein the relator was under arrest for an offense against the laws of this state, it was held that the relator should not be extradited during the pend-ency of that case, but he should be held without bail until that case was disposed of and then surrendered to the Tennessee authorities. If relator objects to a dismissal being entered in vacation, under the authority of the Hobbs Case, supra, he is not entitled to be released from custody, but should be'remanded to jail in Eannin county to be held until the order of dismissal is entered, or the two cases pending against him are otherwise disposed of, and then be delivered by the sheriff of Eannin county to the officer authorized to receive him by the Governor’s warrant, and it is so ordered.

Affirmed, and relator is remanded to the custody of the sheriff of Fannin county, to be held and dealt with in accordance with this opinion. 
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