The state introduced on the trial the warrant issued by the Governor of Alabama, together with the return of the sheriff of Cullman county. Insistence was made that this evidence did not make out a prima facie case for the state. The return of the sheriff rests upon the sufficiency of the warrant of the Governor, which recites the jurisdictional facts which the law requires the Governor to find before issuing his warrant. To this end it was within the province of the Governor to require the production of satisfactory evidence of the existence of these facts. Being a matter of official duty, the presumption will be indulged, in the absence of proof to the contrary, that this duty was performed, and therefore the recitals in the warrant as to these jurisdictional facts are prima facie evidence of such facts. In the case of Poole v. State, 16 Ala. App. 410,78 So. 407, will be found a correct statement of the rule and the authorities to sustain the ruling. See, also, Singleton v. State,144 Ala. 104, 42 So. 23.
Upon a superficial reading of the opinion by Merritt, J., in Fitzgerald v. State, 18 Ala. App. 115, 90 So. 45, it would appear that the decisions of this court are not in entire harmony, but it will be observed that in the Fitzgerald Case, supra, the warrant of the Governor does not appear to have recited a demand or requisition by the Governor of Ohio or Mississippi on the Governor of this state for the delivery of the person named. Indeed, it is stated in the opinion, "There was shown to be no demand or requisition," etc. This was one of the essential jurisdictional facts. It will therefore be seen that the decision in the Fitzgerald Case, supra, is not in conflict with the present holding, where every necessary jurisdictional fact necessary is recited in the Governor's warrant, of which jurisdictional facts the recitals in the Governor's warrant are prima facie evidence. Poole's Case, supra. The expressions used in Ex parte Rice, 18 Ala. App. 186, 89 So. 894, are dictum.
The rule seems to be, as supported by the best authority, that a case like the one at bar is made out prima facie, "when (1) a demand or requisition for the prisoner made by the executive of another state from which he is alleged to have fled; (2) a copy of the indictment found or affidavit made before a magistrate, charging the alleged fugitive with the commission of the crime, certified as authentic by the executive of the state making the demand; (3) the warrant of the Governor authorizing the arrest." *Page 304 When these facts are made to appear by papers regular on their face the prisoner is prima facie under legal restraint. Barriere v. State, 142 Ala. 72, 39 So. 55; Godwin v. State, 16 Ala. App. 397,78 So. 313; Ex parte Forbes, 17 Ala. App. 405, 85 So. 590; Singleton v. State, 144 Ala. 104, 42 So. 23. None of the cases decided by this court recede from the above-stated rule. The question is as to the effect of the recitals in the Governor's warrant. As to this, as has already been said above, when these jurisdictional facts are set out in the Governor's warrant as having been ascertained, they make a prima facie case.
The court properly sustained objection to the inquiry as to whether petitioner had ever committed forgery in the state of Mississippi. The question of the guilt or innocence of defendant of the crime charged is not here in issue. Ex parte Forbes,17 Ala. App. 405, 85 So. 590.
Having disposed of the foregoing questions, there remained only the identity of the petitioner and whether he was a fugitive from justice. The fact, if it was a fact, that a pending prosecution against petitioner at Guntersville had been dismissed was irrelevant. The other rulings of the court, if error, were not sufficient upon which to base a reversal.
We find no error in the record, and the judgment is affirmed.
Affirmed.