Ex parte Gilbreath , 166 Tex. Crim. 64 ( 1958 )

WOODLEY, Judge.

This is an appeal from an order of District Judge Otis T. Dunagan remanding appellant to custody for extradition to Wisconsin.

The Executive Warrant of the Governor of Texas recites that the Governor of Wisconsin has made known to him that appelIant stands charged in that state by complaint and warrant with the crime of “abandonment and non-support of his minor children aged twelve, ten and seven years commited in said State and that said defendant has taken refuge in the State of Texas.”

We have not been favored with a brief setting forth appellant’s contentions but conceive the question presented to be whether or not the testimony of appellant and his present wife, to the effect that he was not in the State of Wisconsin at the time of the offense, if any, and that his failure to adequately provide for the support of his children who live with his divorced wife in Wisconsin was not “intentional,” requires his discharge from custody as a matter of law.

Ex parte Coleman, 157 Texas Cr. Rep. 37, 245 S.W. 2d 712, and Ex parte Oxford, 157 Texas Cr. Rep. 512, 249 S.W. 2d 917, hold that extradition under the facts stated is authorized under Sec. 5 of Art. 2328b-2, V.C.S.

The Governor’s warrant made out a prima facie case and the identity of appellant as the person charged in Wisconsin with the offense of non-support of his children was not challenged.

Whether appellant’s failure was wilful or intentional goes to the merits of the charge and cannot here be inquired into. Ex parte Thompson, 159 Texas Cr. Rep. 161, 261 S.W. 2d 844.

The judgment is affirmed.