Ex Parte Green , 170 Tex. Crim. 311 ( 1960 )

340 S.W.2d 821 (1960)

Ex parte Fred Lee GREEN.

No. 32618.

Court of Criminal Appeals of Texas.

December 7, 1960.

No attorney for appellant of record on appeal.

Dan Walton, Dist. Atty., Carl E. F. Dally, Samuel H. Robertson, Jr., Asst. Dist. Attys., Houston, and Leon B. Douglas, State's Atty., Austin, for the State.

DICE, Commissioner.

This is an appeal from an order entered in a habeas corpus proceeding remanding appellant to custody for extradition to the State of Louisiana.

At the hearing, the State introduced into evidence the executive warrant of the Governor of this State and the requisition and supporting papers of the Governor of Louisiana.

Included in the papers introduced was an affidavit sworn to and subscribed by Carl H. Miller, Jr., before a District Judge in the State of Louisiana charging one Fred L. Green with having committed the crime of forgery in that State.

The executive warrant being regular on its face made out a prima facie case authorizing the remand of appellant to custody for extradition. Ex parte Emmons, Tex.Civ.App., 322 S.W.2d 534.

The appellant then offered in evidence his sworn application for writ of habeas corpus in which he alleged, among other things: "I would show your honor that I am not the Fred Lee Green so named and am not the person intended; I have been in the State of Louisiana but I am not a fugitive from justice from the State or any State."

The State then introduced into evidence a photograph of the appellant which was attached to an affidavit made and executed by Carl H. Miller, Jr., in the State of Louisiana.

Proof was offered by the State that the photograph was obtained from the files of the sheriff's office in Harris County by an assistant district attorney of Harris County and mailed to the district attorney at Baton Rouge, Louisiana, with the request that the photograph be shown to the complaining witness in the case to see if he could identify the photograph as the person connected with the alleged offense. It was further shown that the photograph was returned to the assistant district attorney attached to the affidavit of Carl H. Miller, Jr. by the district attorney in Louisiana. In the affidavit, Miller swore that he operated a business in Baton Rouge, Louisiana, and that he had signed a warrant charging one Fred L. Green with the crime of forgery growing out of the giving of a check to him at his place of business. Miller further swore in the affidavit "that affiant has been shown a photograph of one Fred Lee Green who is in custody of Harris County, Texas, authorities and has identified the said photograph as being that of the same man who cashed the above described check in his place of business on November 17th, 1958."

The affidavit and other evidence adduced by the State were sufficient to establish appellant's identity as the person named in the executive warrant, and under the record presented the court was authorized to remand appellant to custody. See Ex parte O'Connor, Tex.Cr.App., 336 S.W.2d 152, and cases therein cited.

The judgment is affirmed.

Opinion approved by the Court.