
    Ex parte WELLS.
    (No. 11381.)
    Court of Criminal Appeals of Texas.
    Oct. 29, 1927.
    1. Extradition <&wkey;35 — Executive warrant may issue, where complaint charging misdemeanor is presented to Governor, charging fugitive with offense certified as authentic by Governor of demanding state.
    An executive warrant may legally issue, where complaint is presented to Governor, charging fugitive with offense certified as authentic by Governor of demanding state, even though'offense be a misdemeanor.
    2. Habeas corpus <&wkey;92(2)— Court may go behind executive warrant issued in extradition proceedings to examine and review grounds on which Governor may have acted.
    In habeas corpus proceedings, court of Criminal Appeals may go behind executive warrant issued in extradition proceedings in order to determine and review grounds on which Governor may have acted.
    3. Extradition <&wkey;36 — Warrant, demanding arrest of one charged in another state with uttering forged check, held sufficient.
    Warrant, reciting on its face that relator stood charged by complaint and warrant with crime of uttering and passing a forged cheek, reciting demand by Governor of Oklahoma for arrest of relator, and that said demand was accompanied by copy of complaint and warrant duly certified as authentic by Governor of said state, held sufficient.
    4. Habeas corpus <&wkey;>85(2) — Introduction of warrant for arrest of alleged fugitive from justice makes prima facie case for respondent in habeas corpus proceedings.
    ■ Introduction in evidence of proper warrant for arrest of .relator as alleged fugitive from justice in another state made prima facie case for respondent in habeas corpus proceedings.
    5. Habeas corpus <&wkey;85(2) — Burden was on relator to show that demand of Governor of demanding state for his arrest as alleged fugitive from justice was not accompanied by copy of complaint duly certified.
    In habeas corpus proceedings, burden was on relator to show that demand of Governor of demanding state on Governor of state for relator’s arrest as alleged fugitive from justice was not accompanied by copy of complaint duly certified, as law required, since courts will not indulge in presumptions against legality of acts of governmental agencies.
    6. Evidence <&wkey;83(I) — Courts will presume, in absence of contrary showing, that Governor’s action in issuing executive warrant in extradition proceedings was on proper and legal requisition.
    Courts will presume, in absence of showing to contrary, that action of Governor in issuing his executive warrant in extradition proceedings, was on proper and .legal requisition, and that Governor performed his duty legally.
    7. Habeas corpus &wkey;>92(2) — Question of guilt of alleged fugitive from justice cannot be tried in habeas corpus proceeding.
    Question of guilt or innocence of alleged fugitive from justice of crime recited in extradition warrant cannot be tried in habeas corpus proceeding.
    8. Habeas corpus <&wkey;92(2) — Claim that arrest of relator in extradition proceeding was attempt to collect debt should be addressed to executive department of state.
    Claim of relator, in habeas corpus proceeding that his arrest in extradition proceedings was merely an attempt to collect a debt by complaining party in another state, wps matter which should have been addressed to executive department of state.
    9. Extradition <&wkey;37 — That alleged fugitive from justice would be taken from state by deputy of agent designated by Governor of demanding state did not affect validity of arrest.
    That alleged fugitive from justice would be taken back by deputy of agent designated by Governor of demanding state could not affect validity of his arrest or entitle him to discharge.
    Commissioner’s Decision.
    Appeal from District Court, Howard County; Eritz R. Smith, Judge.
    
      Application for writ of habeas corpus by George T. Wells against Ed Long, City Marshal. Prom a judgment remanding relator, he appeals.
    Affirmed.
    Cunningham & Cunningham, of Big Spring, for appellant.
    A. A. Dawson, State’s Atty., of Canton, for the State.
   MARTIN, J.

Appellant made application for a writ of habeas corpus before the district court of Howard county, alleging that he was illegally restrained of his liberty by Ed Long, city marshal. Upon the trial respondent produced relator and answered that he held him upon instructions from J. M. Barker, sheriff of Kay county, Okl., who telegraphed respondent that he held a felony warrant and extradition papers for relator, and that the said Barker’s deputy had arrived with extradition papers from the Governor of Texas in legal and proper form, authorizing him to take into his possession the said relator and return him to Kay county, Okl.

A full hearing was given relator by the said district court, and, upon the facts developed, appellant contends, as we understand : (1) Where a complaint only has been made charging an offense, there having been neither an indictment nor a conviction, an extradition warrant cannot legally issue. (2) The complaint charging the relator with an offense in Oklahoma, showing affirmatively to have been a different offense from that set out in the extradition warrant issued by the Governor of Texas, such warrant was unauthorized, and relator is entitled to his discharge.

By the express terms of the federal statute, the Governor of any state is authorized to issue an executive warrant for the arrest of a fugitive where a/n affidavit has been made before a magistrate of any state or territory charging the person demanded with having committed treason, felony, or. other crime, certified as authentic by the Governor or chief magistrate of the state or territory from which the person so charged has fled. Such was the effect of the holding in Ex parte Bergman, 60 Tex. Cr. R. 8, 130 S. W. 174. We think there is no doubt under the terms of the federal. Constitution and the acts of Congress and of this state, which were enacted in aid and furtherance of the provisions of the federal Constitution, that an executive warrant may legally issue in this state where a complaint is presented to the Governor, charging a fugitive with an offense certified as authentic, by the Governor of the demanding state, and this even though the offense be a misdemeanor. Ex parte Bergman, 60 Tex. Cr. R. 8, 130 S. W. 174.

Regarding the second contention of relator, above stated, it cannot be doubted that this court is authorized to go behind an executive warrant in order to examine and review the grounds upon which the Governor may have acted. Ex parte Cheatham, 50 Tex. Cr. R. 53, 95 S. W. 1077; Ex parte Jowell, 87 Tex. Cr. R. 556, 223 S. W. 456, 11 A. L. R. 1407. However, it nowhere appears in the statement of facts what, if any, complaint was before the Governor of Texas. when he issued his executive warrant for the arrest of relator, nor upon what evidence he acted in issuing such warrant. The warrant itself was introduced in evidence and recites on its face that relator stands charged by complaint and warrant with the crime of uttering and passing a forged check; re-, cites a demand by the Governor of Oklahoma for the arrest of relator, and that said demand “is accompanied by copy of said complaint and warrant duly certified as authentic by the Governor of said state.” This warrant appears to have been in proper and legal form and complies with the requisites set out in Ex parte Denning, 50 Tex. Cr. R. 629, 100 S. W. 401. Under all the authorities its introduction made out a prima facie case for respondent. Ex parte Haynes, 98 Tex. Cr. R. 609, 267 S. W. 490, and authorities therein cited. Recitals of this character have been held conclusive in habeas corpus hearings when not disputed. Ex parte Bergman, 60 Tex. Cr. R. 14, 130 S. W. 174, citing Ex parte Lewis, 79 Cal. 95, 21 P. 553.

Presumptions against the legality of the acts of governmental agencies will not be indulged by the courts. The burden was upon relator to show that the demand of the Governor of Oklahoma upon the Governor of Texas was not accompanied by a copy of the complaint duly certified as the law requires. Ex parte Nix, 85 Tex. Cr. R. 307, 212 S. W. 507. It will always be presumed, in the absence of a showing to the contrary, that the action of the Governor in issuing his executive warrant was .upon proper and legal requisition, and that the Governor performed his duty legally. Hyatt v. New York ex rel. Corkran, 188 U. S. 691, 23 S. Ct. 456, 47 L. Ed. 657.

The relator testified to facts showing his innocence of any crime in Oklahoma and especially of the crime recited in the extradition warrant, but the question of his guilt or innocence cannot be tried in a proceeding of this character. Ex parte Hancock, 75 Tex. Cr. R. 71, 170 S. W. 145; Ex parte Brown, 77 Tex. Cr. R. 312, 178 S. W. 366.

It is further suggested that this is merely an attempt to collect a debt by the complaining party in Oklahoma, but this is a matter that should be addressed to the executive department of the state. It has been stated:

“There is no satisfactory reason why a Governor should issue a warrant where he is satisfied that the sole object of the party complaining is to collect a debt.” 25 C. J. 267.

Some suggestion is made in the record that relator will be taken back by the deputy of the agent designated by the Governor of Oklahoma. We are not able to perceive how this could affect the validity of his arrest or why it would entitle him to a discharge.

The judgment remanding relator is affirmed.

PER CURIAM. The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court. 
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