Opinion
No. 8716.
Decided May 14, 1924.
Habeas Corpus — Affidavit — Magistrate — Extradition.
Where the affidavit filed with the magistrate stated that affiant "has reason to believe" that the accused is a fugitive from justice in the State of Oklahoma and did not state, in addition, that affiant "does believe" etc., the same is insufficient. Distinguishing: Ex Parte Goodman, 182 S.W. Rep., 1120.
Appeal from the District Court of Wichita. Tried below before the Honorable P.A. Martin.
Appeal from a habeas corpus proceeding for a defective affidavit.
The opinion states the case.
Mathis Caldwell, for appellant.
Tom Garrard, Attorney for the State and Grover C. Morris, Assistant Attorney for the State.
This is an appeal from an order of the District Court of Wichita County remanding appellant, who sought by habeas corpus to obtain release from custody under a warrant issued by a magistrate before whom a complaint had been filed charging appellant with being a fugitive from justice.
We notice but one matter complained of. The affidavit filed with the magistrate states that affiant "has reasons to believe" that the accused is a fugitive from justice in the State of Oklahoma; said affidavit does not state anywhere, in addition to the above, "and does believe," etc. Had the affidavit been in the latter form it would have been held sufficient. Brown v. State, 11 Texas Crim. App., 451; Clark v. State, 23 Texas Crim. App., 260; Hall v. State, 32 Tex.Crim. Rep..
An affidavit in the form of that now before us in which the affiant states only that he "has reason to believe etc., has uniformly been held insufficient by the courts of this State. Smith v. State, 45 Tex.Crim. Rep.; Justice v. State, 45 Tex. Crim. 462; Green v. State, 62 Tex.Crim. Rep.. Appellant lays stress on Ex Parte Goodman, 79 Tex. Crim. 67, 182 S.W. Rep., 1120, but we observe that said decision apparently involves confusion of the rules applicable to a case arising under the preliminary arrest of one as a fugitive from justice under Arts. 1090-1099, C.C.P. with those rules applicable to the extradition of a fugitive under Art. 1088, id.
Believing the affidavit insufficient to form the basis for holding the appellant in this case for the reason above mentioned, the judgment will be reversed and the appellant ordered discharged.
Discharged.