Ex parte Stanley

Willson, Judge. Appellant was arrested by virtue of the following warrant issued by the Governor of Texas, to wit: “The State of Texas. 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 California, that William H. M. Stanley and Bertha Stanley stand charged by affidavit before the proper authorities with the crime of obtaining money under false pretenses, 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 fugitives to be arrested and delivered to James W. Gillin and John Parrott, who are, as is satisfactorily shown, duly authorized to receive them into custody and convey them back to said State; and whereas, said demand is accompanied by a copy of said affidavit, duly certified as authentic, now, therefore, I, L. S. Ross, Governor of the State of Texas, by virtue of the authority vested in me by the Constitution and laws of this State, and of 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 fugitives, and deliver them, when arrested, to the said agents, in order that they may be taken back to said State, to be dealt with for said crime. In testimony whereof,” etc. Appellant applied to the Hon. George H. ¡Noonan, judge of the thirty-seventh judicial district, for the writ of habeas corpus, which was granted by said judge, and was heard by him in term time, and appellant was remanded to the custody of respondent, the sheriff of Bexar county, who had him arrested by virtue of said warrant. From said judgment appellant has prosecuted this appeal. Appellant insists that he should be discharged upon the following grounds: “1. Because the warrant of arrest does not set out the pre [377] tended affidavit upon which the. demand of the Governor of the State of California upon the Governor of Texas is based. “2. The warrant of arrest does not state that it is based upon an affidavit certified to be authentic by the Governor of California. “3. The warrant of arrest does not show that applicant fled from the State of California, nor does it show that applicant has fled from the justice of the State of California. “4. The warrant of arrest does not state that the applicant has fled to the State of Texas, or has taken refuge in the State of Texas. “5. The warrant of arrest does not state or show that detaining money under false pretenses is punishable by law in the State of California.” We will dispose of these grounds in the order in which they are presented: 1. It was essential to the validity of the warrant that it should set out in full, or be accompanied by, the indictment or affidavit upon which it is based. (Nichols v. Cornelius, 7 Ind., 611; Robinson v. Flanders, 29 Ind., 10; The People v. Pinkerton, 77 N. Y., 245; The People v. Donahue, 84 N. Y., 438.) In ex parte Thornton, 9 Texas, 635, this question is referred to, and while the court did not decide it, it intimated that the indictment or affidavit should be set out in full in the warrant, citing Clark’s case, 9 Wend., 212, and Smith’s case, 3 McLean, 121. Upon examination of those cases, we do not understand either of them as supporting the view intimated by the court in Thornton’s case. Mr. Church, in his work on Habeas Corpus, says: “A warrant for the arrest and return of a fugitive criminal, must recite or set forth the evidence necessary to authorize the State executive to issue it; and, unless it does, it is illegal and void.” He cites in support of his text Doo Woon’s case, reported in 18 Federal Reports, 898. That case fully supports the text, and cites as authority Smith’s case, 3 McLean, 121, and Thornton’s case, 9 Texas, 635. In Woon’s case, the warrant neither recited nor set forth the evidence upon which it was issued, and for that reason was held invalid. In the case we are considering, the warrant recites, but does not set forth in full, the affidavit upon which it is issued. We have found no decision or authority which requires that the warrant should set forth the evidence in full, except the intima [378] tion referred to in Thornton’s case. The correct rule is, we think, laid down in Donohue’s case, 84 New York, 438,in a syllabus as follows: “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.” The second ground is not, we think, a substantial one. The warrant states that the demand of the Governor of California for the fugitives was “accompanied by a copy of said affidavit, duly certified as authentic.” It would have been a literal compliance with the statute if it had stated that said copy was certified as authentic by the governor of the State of California. But the statement that it was “ duly certified as authentic ” must mean that it was certified according to law; that is, that it was certified by the governor or chief magistrate of the State of California, as it could not have been duly certified.by any other authority. (Rev. Stat. United States, art. 5278.) The third and fourth grounds are, we think, untenable. While there is no direct statement in the warrant that the appellant fled from the State of California or from the justice of that State, to the State of Texas, and had taken refuge in the latter State, it states facts which clearly and unmistakably show that he was a fugitive from justice from the State of California to the State of Texas, within the meaning of the Constitution and the Statute. (Spear on Extradition, 273.) The fifth and last ground is not a valid one. It is not required that the warrant should show that the crime charged in the indictment or affidavit is a crime by the law of the demanding State. (Spear qn Extradition, 287 et seq.) We are of the opinion that the warrant is in substantial compliance with the statute. Fo form for such a warrant is prescribed by law, and when it shows upon its face, with reasonable certainty, as does the warrant in question, that the essential prerequisites to its issuance have been complied with, it must be held prima facie valid. It appears by a bill of exception that the respondent, over the objection of the applicant, read in evidence a copy of an affidavit made in California, charging applicant with obtaining money under false pretenses. This affidavit was not a part of the respondent’s return; was not attached to or accompanying the warrant; was not authenticated as evidence; was not shown [379] or claimed to be the evidence upon which the warrant was issued. It was error to admit it in evidence, but error which can not operate to discharge the applicant. Opinion delivered May 2, 1888. The judgment appealed from is in all things affirmed, and it is adjudged that the appellant pay the costs of this appeal. Affirmed.