For the purposes of this case, the return of the sheriff to the writ of habeas corpus, which incorporates a duly certified transcript of the whole of the extradition proceedings, pursuant to which the petitioner, Clyde Acton, is being held in *Page 107 the custody of the sheriff, constitutes an answer to the petition herein, the legal sufficiency of which is raised by the demurrer of the petitioner.
From the transcript of the extradition proceedings, the following facts appear:
The petition for requisition by state's attorney of Douglas county, Illinois, the requisition by the Governor of Illinois, and warrant issued by the Governor of Ohio pursuant to said requisition each recite that the petitioner is charged with the crime of "abandonment of wife."
The information upon which the petition for requisition is based charges abandonment of wife and neglect and refusal to maintain and support wife, but it is apparent from the context that neglect and refusal on the part of Clyde Acton to maintain and support his wife are charged solely as an essential element of the purported offense of "abandonment of wife," and not as an offense in and of itself.
The affidavit in support of the information, among other things, recites that the affiant wife of Clyde Acton has filed her information in County Court in Douglas county, Illinois, for abandonment by her said husband.
From these various documents it appears that the extradition proceedings are based wholly and solely on the charge of "abandonment of wife."
The copy of the statute of Illinois, set forth in the majority opinion, appears in the transcript of the extradition proceedings as the statute of the state of Illinois prescribing that the offense charged in the information is a crime.
An inspection of this statute reveals that it does not prescribe any such offense as "abandonment of wife," but only prescribes an offense of the neglect or refusal to provide for the support and maintenance *Page 108 of wife and an offense of desertion or neglect or refusal to provide for the support and maintenance of a child or children.
As no such offense as "abandonment of wife" is prescribed, the Governor of Illinois was without authority in law to make requisition on the Governor of Ohio for such offense, and the Governor of Ohio was without authority in law to grant such requisition and issue said warrant, and said extradition proceedings and said warrant are null and void.
As the return of the sheriff shows that said requisition proceedings are null and void for the reasons mentioned, the demurrer of petitioner should be sustained and he ordered discharged.