Ex Parte Haynes

• Decision Date: 12 November 1924
• Docket Number: (No. 9038.)
• Citation: 267 S.W. 490
• Parties: Ex parte HAYNES.
• Court: Texas Court of Criminal Appeals

267 S.W. 490

Ex parte HAYNES.

(No. 9038.)

Court of Criminal Appeals of Texas.

November 12, 1924.

Rehearing Denied January 7, 1925.

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), but, if not defective on its face, the authorities uniformly hold that in a habeas corpus trial the Governor's warrant makes 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...