Ex Parte Haynes

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 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,92 Tex. Crim. 614; Ex parte Carroll, 86 Tex.Crim. Rep.; Drinkall v. Spiegel, Sheriff, 36 L.R.A., 486. The idea that in authorizing the extradition of persons "charged" with crime, the Constitution of the United States excludes those who have been convicted of crime, does violence to the intent and leads to a construction of the language of the Constitution at war with its evident purpose. Hughes v. Pflanz, 71 C.C.A., 234, 138 Fed. Rep. 980; Ex parte Reggel, 114 U.S. 642; Roberts v. Reilly,116 U.S. 80; Lau Ow Bew v. United States, 114 U.S. 340; L.Ed. 36, p. 47; Barranger v. Baum, 103 Ga. 475; 68 Am. St. Rep., 122.

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 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, 86 S.W. 114, 187 Mo. 560; People v. Pitts, 97 N.Y. Supp. 509; Words Phrases, 2nd Series, Vol. 1, p. 796; Com. v. Barker, 113 Mass. 399. It seems that a "commitment" is a process performing substantially the same office as that which in our own state is called a "capias", (see Webster's New International Dictionary), that is, the authority for holding in prison one convicted of crime. See C.C.P., Arts. 308, 309, 310, 311, also Arts. 871, 879, 880.

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.