267 S.W. 490 | Tex. Crim. App. | 1924
Lead Opinion
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.Crim. R.,
Relator complains because the court declined to grant a postponement 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 accompanying the requisition revealed any fact which would be available to relator in resisting the extradition proceedings and we can not 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.
Affirmed.
Addendum
In Ex parte Stanley, 25 Texas Crim. App. 374, 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 *613 by indictment or affidavit. Ex parte Dawson, 28 C.C.A. 354. A recital, however, showing that the documents before the governor issuing the warrant disclosed the conviction of the fugitive of a crime within the purview of the law would suffice.
When a prosecution is initiated and pursued to the judgment of conviction, the accused is "charged" within the meaning of the United States Constitution. The announcement to the contrary in Ex parte Lewis, 75 Tex.Crim. Rep., is deemed unsound. Upon this subject, the reasoning of Judge Ramsey and of the writers of the opinions cited in Bergman's case, 60 Tex.Crim. Rep., seems conclusive. Other cases in point are Ex parte Holt,
In the present case, the governor's warrant alone is relied upon, and its recitals are determinative of its sufficiency. It recites that it has been made known to the governor that the relator "stands convicted before the proper authorities with the crime of forgery and stands committed to the penitentiary in the demanding state." We quote all that is found in the executive warrant upon the subject of authority:
"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, etc."
"WHEREAS, said demand is accompanied by copy of said penitentiary commitment duly certified as authentic by the Governor of said State."
It must be noted that the only document to which reference is made in the governor's warrant as accompanying the demand or as evidence upon which the warrant is issued is a copy of the "commitment" authenticated by the governor of the demanding state. No reference is made to an indictment or affidavit, and the only evidence of conviction of crime seems to be that obtained from the certified copy of the commitment mentioned. Therefore, the question presented is the sufficiency of this recital.
In Webster's New International Dictionary, the signification ascribed to the word "commitment" is "a warrant for imprisonment; a mittimus." As defined in the same book, a "mittimus" is "a warrant of commitment to prison." In court decisions and law books, a commitment *614
is described as a warrant, process, or order issued by or upon the authority of a court, directing an executive officer to confine a person named in prison for a stated time or until the happening of some named event. See 8 Cyc. 336; 12 Cyc. 304; 19 Cyc. 651; also Million v. Allen,
It is conceived that the commitment upon which the governor of this state acted in issuing the warrant in question may have contained, in an authentic maner, all the requisites of the law to show that the relator was under conviction of an extraditable crime in the demanding state. Conceding that the nature of the "commitment" was such as might have such effect, the presumption prevails in support of the warrant that it did so. If the "commitment" filed by the governor with the requisition was not in law sufficient to support the warrant, the burden under the law was upon the relator to introduce the papers in evidence. His complaint that he was prevented from exhibiting them in the trial court by the refusal to postpone cannot avail him for the reason that he has failed to bring before this court, by motion for new trial or by bill of exceptions, proof of the contents of the documents mentioned. In their absence, the presumption of regularity prevails.
The motion is overruled.
Overruled.