*1 Parte Cheatham. 1906.] he witnessed defendant, Williams, by of Bettie
alleged killing witness, Hillyard Bray Buck Bray prosecuting between difficulty side, prose- the other on side, and defendant on one him to shoot with attempted assaulted defendant witness cuting life of threaten to take the defendant. said witness and heard gun, shows that deceased above, testimony the uncontradicted As stated road, when the wagon going along public and Buck were Bray was, bushes, some shot and killed de- secreted behind appellant, be material for ceased; certainly appellant and would prove had animus towards deceased but also that he not at Buck only Bray. were The special charges requested by appellant given court. of the court law to the facts applied charge properly, no error is manifest therein. Ho error record, appearing is affirmed. judgment
Affirmed. Parte Mrs. Denning. Cheatham, alias May 16, No. 3288. Decided 1906. Corpus—Requisition
1.—Embezzlement—Habeas of the Governor—Indictment- Affidavit—Complaint. An information, extradition warrant cannot be issued on pre- but the law particular warrant, inspected scribes no form of and if when it is found to contain the essential elements sufficient; under the Federal enactment it will be affidavit; necessary and a should be is an nor is it the executive warrant accompanied by copies certified of the affidavit or indictment or that therein; they they presented should be set out or that to the Governor. See opinion form for of executive warrant held sufficient. —Same—Authority go of Courts to Behind Executive Warrant. open question authority It not an toas go courts of this State to be- warrant, ground hind the in order to upon examine and review the the Governor issued his have extradition warrant. 3.—Same—Authentication. opinion See authentication of affidavits the executive of the State to form basis action Governor of this State. 4.—Same—Case Stated—Affidavit—Extradition. Upon requisition upon Governor of the State of Governor upon the State of the affidavit which the was based showed that belief, made oath to affiant same information and and also showed its face an offense over which the courts of the State of Colorado did not have jurisdiction, because if offense was committed it was committed Held, issuing Kansas. that the action of the Governor of Texas his extradition courts, complying warrant could be reviewed and set aside as not with the governing Brooks, Judge, law extraditions. dissents. from the District Court Bexar.
Appeal Tried below before the Hon. Edward Dwyer. from an order relator Appeal remanding as a fugitive justice habeas proceeding by custody, corpus. states the case. opinion Beports. Texas Criminal Newton, Storm, & T.
Onion J. John Henry, On question relator. *2 State, Texas of authentication: Patterson v. Crim. 103; Rev. App., S., sec. 905. Stat., U. Yantis,
J. B. the State. Attorney-General, Assistant HENDERSON, Upon application Governor Judge. Colorado, of Texas granted State Governor and she was arrested sheriff of Bexar by County, and appellant, she of her the writ of habeas corpus, hearing application was remanded to custody. virtue of which State, by warrant the Governor this in on the relator, held the was introduced evidence
the respondent and is as follows: hearing, of Texas.
“The State sheriff, constables and other civil officers all To and singular said State: to me it made known Governor
Whereas, by has been stands com- charged by that Mrs. Parlee Denning authorities, with crime and information before plaint State, and said embezzlement, said that the defendant committed Texas; and Whereas the said in the Gov- taken refuge has States, and Laws the Constitution of the United ernor, pursuance and that I cause the said be arrested fugitive of me has demanded is, shown, is as satisfactorily duly F. Dayton, 'to Geo. delivered back custody her into her to said convey to receive authorized Whereas, demand of said com- accompanied by is State; copy certified as authentic duly information Governor plaint said State. Lanham, virtue Texas, by T. Governor therefore, I, S. W. Now, and Laws of this in me Constitution vested authority warrant, my do issue this States, commanding United State, and of State, civil of this officers arrest and other sheriffs, constables all her and to deliver when fugitive arresting assisting aid be taken back to may that she order agent to the said arrested for said crime. dealt with State, to be my hereunto name and have signed I have Whereof, Testimony Austin, Texas, at this hereon impressed, to be of State the Seal caused March, D.,A. 27th Lanham, T. S. W. Governor. (Seal) The Governor:
By of State.” Shannon, Secretary K.O. t warrant, the executive con objections various urged Appellant 5378, article Revised with Statutes comply does it ending 1906.] (cid:127)53 Parte Cheatham. with States, United article Criminal Code Procedure of he other contends that said Among article that the things requires requi sition to the U. should be in S. “stands (according statute) charged by dictment or affidavit as the be.” The authorities case seem that the should be made one or other of these meth require these, ods. our own to concur with And decisions a' com except of an affidavit. equivalent this State is It has regarded plaint advised, never far extradition held, been as we warrant so White, In Ex would issue on an information. 39 Texas parte Crim. 497, it no form of particular is held the law prescribes warrant, but if found to contain the essential when inspected elements under the Federal enactment will be sufficient. It is take there held that affidavit. We distinctly “complaint” *3 it, that this was our law authorizes a of criminal because prosecution courts, cases before either as trial or magistrates, courts examining on what are termed in the statutes These “complaints.” must sworn to.
It is not that the necessary executive warrant should be accompanied indictment, certified of the by copies affidavit or or that this should set out the warrant. See Ex 25 Texas parte Stanley, Crim. 372. App.,
Nor is that the executive necessary warrant should recite the that affidavit or indictment from the to demanding presented State the of Texas, Governor the by any legal authority from of State Colorado.
We hold that the executive warrant is sufficient. Ex White, parte 39 Crim. Ex 498; Texas 25 Rep., parte Texas Crim. Stanley, App., 372; Ex Thornton, 9 parte 635. Mass., 106 Kingsbury’s 223.
On the trial insisted on behind the appellant going executive war- rant, show, claimed, in order to as she the requisition papers from the the governor State of were not to sufficient the authorize this State to his governor issue writ of extradition. And she offered certain the from papers office the secretary state, affidavits, in two order to including show that the executive warrant was not authorized. court, These were the trial rejected by her bill to reserved the action appellant exceptions court.
It is not an as open question authority courts of this warrant, go State behind order to examine and the grounds governor review which the have upon may issued his Thornton, Texas, 635; extradition warrant. Ex 9 Ex parte parte Hart, 108; 35 Rowland, Ex Rep., Fed., 260; Texas Crim. 63 parte Fed., 481; Bruce v. 124 Payner, 80; Roberts v. 116 U. Riley, S., Richardson, Minn., 115; State v. 34 ex rel. Lawrence v. People Brady, 56 Y.,N. v. said: Roberts it is “It must Riley, supra, appear State to requisition papers governor whom Bepoets. Texas Criminal it, he can with lawfully comply
such a before demand presented, a crime with first, substantially charged demanded is the person he is to have alleged from whose justice laws of an certified authentic affidavit, an indictment fled, Second, demand. person governor making State, the executive demanded is from the justice a fugitive The first of these makes the demand. authority prerequisites law, is a and is face of the upon papers question always open writ under the on an judicially application discharge inquire fact of habeas The second governor corpus. question the. must such the demand is made decide of the State whom upon far his decision upon evidence as he deem How satisfactory. in habeas proceedings this latter be reviewed question may judicially conclusive, or is not are not settled questions whether corpus, "decisions, nor authoritative judgment .harmonious-judicial by any case, however, appears gone this court.” In that the court have correct governor into the latter held that question, from justice. his decision that party fugitive is, to first the effect urged by appellant proposition authentic is neither of said affidavits certified as papers, of the courts of the State governor holding Colorado. to be uniform that this must in some before way seems quite war is authorized to -issue his extraditing governor 258; Ex 20 Fed. Hart, Fed. parte parte Morgan, rant. *4 116 95. Ex 307; v. U. Riley, S., parte Morgan, supra, Roberts 635, holds: Thornton, “The parte representations citing of no effect, of unless sup of demanding a authenticated of indictment found or copy by duly ported It will be 'seen an examination of the authorities made.’’ of the executive of the this certificate State making requisition that or in some form other. and the cases seem Obviously, must appear hold, should on or so this certificate attached to the indict in However, or ment affidavit. certificate Kingsbury’s supra, recites, to be in of his In that he requisition. the governor appeared annexed, hereunto I fully appear by “as will more which papers The of to be authentic.” statutes Massachusetts were referred' certify was held to to, and this authentication be sufficient. In the case at affidavits constituting the two were alleged bar papers, (and us in bills of but is no exception, are before there certificate rejected) either, the same were that authentic of governor copies had before the of Colorado. If we are magistrate proceedings maxim, all are to be in that favor of the things presumed apply were rightly done, of that same his action governor, above mentioned, attached or papers was that said requisition it, therein, and that he stated were attached that said an papers in authenticated accordance with duly nexed the laws papers Bx Parte Cheatham. 1906.1 cer- case, the Massachusetts then,
said in with the State, accordance be sufficient. tificate of authentication would a on, is insisted to the effect
Another proposition as is not such an affidavit on which the was is requisition granted belief is, on information and law; is one made the two shows that us An record before merely. inspection court; evidence, in and both rejected affidavits were introduced warrant. the governor’s the court behind refusing go affi one of these connection, .however, that but this urged court; the other not made this was davits can be considered by a justice but made before for the was a purpose requisition, for the the 10th of Colorado, February, merely on peace Henry in purpose procuring process affidavit, stated, This Mrs. Parlee Denning. Denning to be terms, in and was made before W. N. Ruby, general El in the State of Paso County, justice peace Mc from David of the two deeds question, embezzlement charging ' Kee; makes this affidavit. The other affidavit is and David McKee Hubbard, L. 23rd attorney day made Robert for the March, 1906, and to be paper asking requisition, appears If other granted. requisition evidently which the warrant should have been issued requisition, paper question and Parlee the affidavit is made Denning, Henry Denning both is made for Parlee requisition both them. further the record indicate that this was other papers only. and the on which the writ issued. granted, the paper as follows: paper, We copy L. Hubbard, sworn,
Robert first on oath states: being duly he is an law, Paso, El attorney at practicing County has been the con- legal counsel and adviser of the said David McKee led to the arrest detention cerning matters and things one, Antonio, Mrs. Parlee San Denning, city Texas; arrest, March,- that before said and to wit: the 10th *5 of the said left the office affiant for the of find- purpose McKee thereto, the said Mrs. that the Denning; Parlee said McKee ing prior sent a to different number the Hnited large telegrams places States for the the whereabouts the said Mrs. discovering purpose the all fully that to affiant said McKee confided Denning; facts the transaction for which the said and circumstances concerning aforesaid; Mrs. arrested is now detained as that was and Denning McKee, affiant the said so to said upon such information given belief, facts be that at or about and affiant’s affiant states the to upon one McKee before time stated made said 1ST. ob- Denning W. of the the said Mrs. Parlee Ruby, justice peace, Reports. Texas Criminal deeds,
tained from the said McKee íavo title to purporting convey Kansas, said McKee valuable lands in the which said deeds Averéthen the value of five thousand dollars that ($5,000); said then and there and to and Avith the Denning promised agreed said McKee that she would take those deeds to recorder of deeds in land in said where the described deeds situ- county ated, and there record the same. And said did thereupon McKee deliver for to the said said deeds purpose; Denning deeds, did not converted them to her own Denning record but use.; McKee, did, she that when said left the said the State of within a few after days Springs, Kansas, her, for said deeds were delivered to she departed to said Avliichshe conveyances and there obtained other property, transferred the title to other than the said who persons rights said McKee. Avhollyignorant is made in faith for the That good application not accused, and that said McKee does sole purpose punishing of collecting or to use the the purpose desire expect prosecution or debt, and Avillnot indirectly or any private purpose, directly the same for of said purposes. use any
Robert L. Hubbard. 1906. me, March, and to before this 33rd A.D. sworn Subscribed W. N. Ruby (Seal) Justice of the Peace.” First, made Now, is made as this: the question belief, predicated upon information and facts directly affiant, L. An in Robert Hubbard. within the knowledge is, case; to be the shows such paper spection made on information and belief We hold that only. 108; Rowland, Ex 35 Texas Crim. not sufficient. parte Rep., this Avas Hart, 307; Ex 63 Fed. Rep., parte Fed. Morgan, parte discussed, thoroughly In latter this question as folloAvs: such an affi “By requiring that opinion Ave quote extent citizen is to a great protected, davit the liberty is made is demand enabled de thereby Ayhom has crime been committed. to believe termine if there cause a citizen of Maryland removal of To authorize the crime, more than the something for trial on a charge Washington facts, that he believes the with the allega unfamiliar of a party oath and is true, should demanded to be information of an tions enable would de irresponsible otherwise To hold law. Avith those impunity against charges make false signing parties them, after have permit they their enmity, subject representations their setiure the to believe officials caused public innocent persons papers and removal arrest imprisonment in- merit and fraudulent without fact.” character, but regular *6 57 Parte Cheatham. 1906.] and court, before this case, this same question Bowland’s supra, affiant made oath to same held that the affidavit which we showed on information and belief was not sufficient. the affidavit here does
It further insisted that presented, all, if an offense over does, an offense at or it it charges An have inspection the courts Colorado did not jurisdiction. it was careful not to attorney making the affidavit shows that offense, he terms to state the facts which general but allege in Colorado. This offense was evi assumed constituted offense Colorado, Legislature under the amended act of the dently brought This sessions, Colorado, in 1893. (See page 119.) acts one or con makes it an offense for to embezzle any fraudulently act embezzle, his or with intent to or whoever use, vert to own secrete use, or deliv to own fraudulently money, goods property, converts his him, subject to shall deemed may ered larceny, That to is, undertakes guilty larceny, punished accordingly. We make embezzlement stated larceny punishable accordingly. and the concede that deeds question property subject embezzlement, or does said act but show this larceny committed in embezzlement was Colorado? On does it not show that the act conversion was consum contrary, in the of Kansas. It is said that Mrs. Parlee mated State deeds, etc., from title obtained said McKee two purporting convey Kansas; lands the State of that said Denning promised valuable that she would take said deeds to the recorder of deeds agreed situated, the land described in said in the where deeds was county same; there record the deeds were delivered to her deeds, she did not record the them but converted purpose; wit: left the use, her own' that she State within Kansas, deeds her for after said were delivered to days few State other to said conveyances and there obtained which she property by title to other than the said persons transferred the McKee. to these al wholly ignorant rights According there is no escape proposition we believe legations embezzlement, was an act of consummated in act, same was .if Kansas; and that the affidavit itself its face shows that of Colorado. not an offense in the State While it is not this of this character, forum in a case to look this into the competent the same account indictment, quash of some of an elements defect, competent some inherent for this yet or irregularity in order to determine whether papers to look into requisition court an offense cognizable punishable contains the affidavit or not see State v. subject Richardson, this On State. the demanding 308; 115; 20 Fed. v. Den Kentucky Minn., parte Morgan, it is said: supra, must How., 66. “It nison, Morgan’s the tribunals of honoring to the governor had or territory jurisdiction try, or else how demanding *7 (cid:127) Reports. Texas Criminal made. Crime’ in legal can a crime be with legally ‘Charged means in parlance, judicial course regular proceedings. charged A man is cannot with crime when there no charged juris- legally diction to him.- he is The fact that so means that try charged legally he is a charged by to him. authority having right try The right means over the where try jurisdiction place the crime had been committed, and over the In commits it.” that case it was person held the court did not have failure to make an jurisdiction, for allega- tion in the indictment The was an Indian. party court no others than territory having jurisdiction try Indians murder. this case it is not for want of an allegation give on the themselves oust jurisdiction; contrary, allegations the courts of jurisdiction. matter of delicacy It is a some to review the action of the executive in his extradiction However of this State warrant. this is granting courts, and involves a cast which duty responsibility upon them, We cannot assent to the claim meet. they are executive in warrant of the extradition cannot be granting act a person into. removal of from this State for whom inquired character, been in its of extradition has is granted summary the writ act must Congress strictly complied provisions State, If with. has committed crime one and fled to an- person is those other, demanding only required to pursue provisions authorize the Congress of the laws of warrant extradition These are and can be followed. Ho plain, easily provisions issue. made itself to be the harbor or for crim- refuge shoiild permit other hand the of the is liberty other States. On the citizen inals of of law has erected for his provisions and the involved, Congress with. These complied provisions should be respected safeguard, undue for the citizen arrest and intended protection corpus of habeas is order to extradition, provided, and the writ her as the in his or highest rights humblest as well protect has been the law hold this complied We privileges. ordered appellant discharged. is reversed The judgment with. Relator discharged. Judge do with the not agree opinion BROOKS, (dissenting).—I this record An shows that inspection of the court. majority with complied prior granting necessary requisite every legal State, this the Governor of and the warrant executive form. warrant the following makes it of exception bill Appellant’s in a court was filed of com- information) complaint affidavit (or Colorado; and this the' in the State jurisdiction petent his warrant: predicated which the Governor 1906.] Paste Cheatham.
“State County. El Pa.so and information before of David made and for Esq., justices W. K. one Ruby, peace 1906, D., who, of February, duly on the 10th A. county, day being oath, Mrs. sworn, says: Henry Denning Denning, then D., A. in said January, county, being on the 9th of such receive and take into their possession virtue agency, *8 said McKee, said then and there the McKee delivered the him, there, did McKee, the said David and and there the of then agents one them, and Parlee as such Denning agents, the said Henry McAdams, one and warranty conveying certain deed executed James McKee, certain deed quit-claim real estate said and one title to to the the real estate the said and Henry Denning conveying executed then of the McKee, to said David each of said deeds and there being McKee, and $5,000, and of so received value of property of in the name and on account the said and afterward and feloniously, and there and embezzle the same fraudulently did then use the same their own fraudulently feloniously and and convert embezzle; intent and so said Henry same secrete with and the then and there in manner form afore did and and Parlee Denning deed, and the said, the said deed warranty quit-claim property McKee, their and from the said employer, of the said David principal take and to the steal, carry away, contrary feloniously David McKee in such case made and provided, form of the statute of the of of the State Colorado. People peace dignity said Henry Denning and Mrs. Parlee prays He therefore dealt with law. may according arrested Denning
David McKee. of before this 10th A. me, day February, subscribed Sworn D., 1906. Ruby,
K.W. (seal) Justice of the 'Peace. Colorado, of State El Paso. of County and for of the within peace, county Euby, H. I, justice W. Colorado, certify do hereby foregoing and State
El Paso of the 'filed office on the complaint my copy and correct true is a 1906, in suit wherein the People of February, day 10th and Henry Denning and Mrs. Parlee are plaintiff State March, hand this 23rd my Witness day defendants. Denning Euby, H.W. (seal)
Justice the Peace. Complaint. Criminal Endosed: and Mrs. Henry v. of Colorado of the State People in my made and filed David McKee Denning. Complaint Reports. Texas Criminal office, this 10th A. N. February, D., 1906. W. Ruby, justice of the peace.”
A casual of this inspection affidavit shows charges relator with a criminal offense State Colorado. majority opinion says: concede that the deeds in “We question property or embezzlement.” larceny subject of this Robert
Subsequent filing Hubbard, L. McKee attorney representing party whom the deeds were (the filed affidavit before Governor of the stolen) State of Colorado in the affidavit quoted opinion in which (which majority), that above affidavit of McKee had appears been previously filed, relator with the crime stated. The charging affidavit of the filed in order to .attorney merely official give governor notifica- fact that relator was a tion of the from the fugitive jurisdiction Colorado, and was State and asked the gov- ernor for a Governor of Texas for the requisition upon arrest of the relator. The affidavit of Hubbard is not a “certified copy” from the record to be an any appears original affidavit, and not filed court or before any any justice peace. a criminal It is not an affidavit as’is the affidavit of charging offense, *9 The affidavit of McKee shows it was endorsed a McKee. “criminal and filed the justice the case of “the peace complaint;” the of Colorado v. Henry and Mrs. Parlee People Denning of Hubbard was The affidavit to the Denning.” evidently presented Texas to evidence the fact that Mrs. Parlee was Denning Governor and this fact was from to be established justice, necessary a fugitive before the executive warrant could to the Texas issue. Governor noted that does not majority opinion It will be set out the is based McKee,- but the affidavit of opinion that relator should because that Hubbard, discharged affidavit This affidavit was filed with the merely not an offense. does for the as a issuance of the predicate requisition. of Colorado Governor the bill exceptions relator, that is shown For ought certificate, aby duly authenticat- accompanied McKee was affidavit Relator merely the Federal Statute. introduced required by it as ing that the must Governor of Texas presume and we part papers, of his We cannot authority. take scope the legitimate within acted as conclusive proof relator that there prepared exceptions bill of McKee introduced and the complaint on copied certificate was no and such certificate, such a will presumption If there above. has been with' in complied statutory prerequisite. every indulged, of the lower court judgment this requisition, the granting officer to be delivered from custody, relator remanding be affirmed. Colorado, should Judge Brooks Presiding in his dissent, Judge.
DAVIDSON, set out affidavit David does opinion the majority states Parte Cheatham. 2.906.] However, as will be seen from the opinion
McKee. original stated, is referred to and its contents affidavit but substantially of the court based on the affidavit of Hubbard being essentially holding set out. only notice that We the McKee affidavit dissenting opinion adopts as the basis for the writ of the Governor of Texas. requisition by However, no reason is for that In the particular selection. assigned the court opinion, stated the reasons for majority definitely adopting the affidavit of Hubbard. It seems that Brooks Judge compelled also to resort to the Hubbard affidavit as authority granting on the ground McKee affidavit made no allusion requisition, to the fact that Mrs. Parlee was a fugitive justice. He uses said affidavit for this but abandons it other purpose any We believe if it was to resort to this affidavit as purpose. necessary for the basis requisition any pretext, we would be con- strained to same as the adopt entirely predicate warrant. assume, however, us that both were before the Governor of Bet
Texas, and Brooks Judge him, treat both as before appears see how the case then stands. Both the same matter charged as con- the offense stituting alleged Mrs. The McKee Denning. affidavit terms general offense, while charges the Hubbard same, offense and charges the details gives or particulars thereof. These show an offense not committed in the State of Col- orado but if an offense any forum, committed in the State of .
Kansas. That was the real offense for which the governor granted his writ of and it showed requisition, the Avantof absolutely authority on the of the executive of part this State to have issued said writ. does not dissenting opinion to avoid attempt this proposition. that, if it hold even be conceded that So we both affidavits were before of this governor Judge Brooks holds), there was (as no of the executive of this State to authority part have issued said *10 issued, as stated writ. Avas original The same opinion, on an offense on information and belief, and Avas charging issued it was an offense anywhere) Kansas, for an offense (if For the reasons in the Colorado. herein stated, and not I believe that opinion, in the original judgment as stated should discharged. be reversed appellant
Reversed and relator discharged.