Ex Parte Hogue

• Decision Date: 15 May 1929
• Docket Number: (No. 12665.)
• Citation: 17 S.W.2d 1047
• Parties: Ex parte HOGUE.
• Court: Texas Court of Criminal Appeals

17 S.W.2d 1047

Ex parte HOGUE.

(No. 12665.)

Court of Criminal Appeals of Texas.

May 15, 1929.

Commissioners' Decision.

Appeal from District Court, Bexar County; W. W. McCrory, Judge.

Habeas corpus proceeding by Willis Harold Hogue. From an order remanding petitioner to the custody of the agent of a foreign state, who had been designated to receive him, petitioner appeals. Reversed, and petitioner discharged.

Schlesinger & Schlesinger and Harry L. Howard, all of San Antonio, for appellant.

A. A. Dawson, State's Atty., of Austin, for the State.

MARTIN, J.

Appellant was indicted by the grand jury of Cuyahoga county, Ohio, for an offense denominated in the extradition warrant of the Governor of Texas as "neglect of minor child," which is alleged in the indictment to have occurred on the 1st day of February, 1926, "and from that day continuously until the present time, to wit: the 11th day of March, 1929." Appellant was arrested under an executive warrant issued by the Governor of Texas. He sued out a habeas corpus before the district court of Bexar county, Tex., on the 26th day of March, 1929, and on that same day a hearing was had and order entered remanding appellant to the custody of the agent of the state of Ohio who had been designated to receive him, from which order appellant appeals to this court.

It was shown on the habeas corpus hearing without dispute that appellant had arrived in San Antonio about the 1st day of December, 1925, and had continuously resided there since that time to the date of the hearing and had not during said time returned to the state of Ohio; that he had been married in the state of Ohio; had sued his wife in the district court of Bexar county for a divorce and that a divorce had been granted him about the time the indictment against him herein was returned in the state of Ohio. It further appears that he had a child by this marriage, and further testimony was given of his ability and willingness to support same, which we do not quote for the reason that same is immaterial to a disposition of the present appeal. It also appears in the statement of facts that the Governor of Texas issued his executive warrant for appellant's arrest without hearing evidence as to whether appellant was bodily present in Ohio at the time of the commission of the offense charged in the indictment.

It affirmatively and uncontradictedly appearing on the habeas corpus hearing that appellant could not have been present in Ohio on and between the dates that he was alleged to have there committed the crime charged against him, the question presented is whether or not he is a fugitive from justice under the Constitution and laws of the United States so as to authorize his extradition.

The question has been pointedly decided in appellant's favor:

"Parole evidence is always admissible to show the accused is not in fact a fugitive. Wilcox v. Nolze, 34 Ohio St. 520; 19 Cyc. 94. Quoting from Cyc.: `Whether he is a fugitive from justice is a question of fact upon which the opinion of the governor expressed in the warrant itself is prima facie evidence; which, however, may be rebutted under a writ of habeas corpus by admissions or other conclusive evidence.' In note 79 above cited, we find this quotation: `We are of the opinion that the warrant of the governor is but prima facie sufficient to hold the accused, and that it is open to him to show by admissions, or by other conclusive evidence, that the charge upon which extradition is demanded assumes the absence of the accused person from the State.' Hyatt v. People, 188 U. S. 691 [23 S. Ct. 456, 47 L. Ed. 657]; Bruce v. Rayner [C. C. A.] 124 F. 481; Eaton v. West Virginia [C. C. A.] 91 F. 760; In re Bloch [D. C.] 87 F. 981. See, also, People v. Hyatt, 172 N. Y. 176 [64 N. E. 825, 60 L. R. A. 774], 92 Am. St. Rep. 706; Jackson v. Archibald, 12 Ohio Cir. Ct. 155; Com. v. Trach, 3 Pa. Co. Ct. [Rep.] 65; In re Tod, 12 S. D. 386 [81 N. W. 637, 47 L. R. A. 566], 76 Am. St. Rep. 616. Burden of showing he is not a fugitive rests on the prisoner when a proper warrant has issued. State v. Justus, 84 Minn. 237 , 55 L. R. A. 325; State v. Clough, 71 N. H. 594 , 67 L. R. A. 946; Katyuga v. Cosgrove, 67 N. J. Law, 213 ." Quotation from Ex parte Jowell, 87 Tex. Cr. R. 558, 223 S. W. 457, 11 A. L. R. 1407.

From the United States Supreme Court we quote:

"The exercise of jurisdiction by a state to make an act committed outside its borders a crime against the state is one thing, but to assert that the party committing such act comes under the Federal statute, and is to be delivered up as a fugitive from the justice of that state, is quite a different ...