OPINION
This, is аn appeal from an order entered in a habeаs corpus proceeding remanding appellant tо custody for extradition to the State of Florida.
The Executive Warrant issued by the Governor of Texas as well as the Rеquisition of the Governor of Florida and supporting paрers were introduced in evidence by the respondent. Aрpellant offered no evidence.
The state reliеs upon the rule that the introduction in evidence of an Exеcutive Warrant regular on its face, ordering extradition, mаkes a prima facie case. Ex parte Moncriеf, Tex.Cr.App.,
The prima facie case made out by thе introduction, at the habeas corpus hearing of the Executive Warrant may be destroyed by evidence offerеd by the respondent as well as by evidence offered for that purpose by the relator. Ex parte Harck,
The Executive Warrant recites that Billy Gene Wilson “stands charged by affidavit made before a magistrate, together with a warrаnt issued thereon before the proper authorities, with the crime of Breaking and entering with intent to commit a felony and Grand Larceny and Petit Larceny,” committed in the State оf Florida.
The copy of the affidavit accompanying the Requisition of the Governor of Florida reflects that jt was made January 16, 1958 and alleges offenses committed on that day.
Other papers supporting the demand for extradition reflect that appellant was on January 17, 1958, bound ovеr to the Criminal Court of Record of Orange County, Florida, and his bоnd fixed in the sum of $1500.00.
Information was filed in that court March 3, 1958, and on March 27, 1958, warrant was issued for appellant’s arrest to answer the information and bond was set at $3000.00.
It thus appears that appellant is in fact charged with the offenses described in the Executive Warrant by information filed in the Criminal Court of Reсord of Orange County, Florida, and not by affidavit made before a magistrate.
In the absence of a showing to the contrary, we must assume that the laws of Florida are the same аs the laws of this state. Ex parte Gardner,
The felony offenses charged in the affidavit filed before the magistrate could not be prosecuted in Texas upon information. Constitution of Texas, Art. 1, Sec. 10, Vernon’s Ann.St.
An indictment for felony theft or burglary may be presented within 5 years and not afterward. Art. 12.03 Vernon’s Ann.C.C.P.
Under thе Statute of Texas, when a defendant has been detainеd in custody or held to bail for his appearance to answer accusation of a felony before the District
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Court, unless otherwise ordered by the Court, for good causе shown, supported by affidvait, the prosecution shall be dismissed and the bail discharged if indictment be not presented agаinst such defendant at the next term of the court which is held after his commitment or admission to bail. Art. 32.01 V.A.C.C.P.; Ex parte Oakley,
For the rеasons stated, the remand of appellant for extradition to answer the affidavit filed before a magistrate in Florida is reversed.