Relator is held by virtue of a Governor's warrant issued by the Governor of the State of Texas upon requisition from the State of Oregon. He sought his release by way of habeas corpus and was remanded to custody by the district court of Tarrant County. Hence this appeal.
Relator is under indictment in the circuit court of the County of Clackamas, State of Oregon, on a charge of arson alleged to have been committed on the 25th day of July, 1930. In the habeas corpus proceeding in the district court of Tarrant County relator testified that he was not in the State of Oregon on the date the offense was committed, but was in California. Witnesses for the respondent took issue with relator and testified that he was in the State of Oregon when the offense was committed, but was not in the county where the fire occurred.
Relator contends that under the holding of this court in Ex parte Hogue, 17 S.W.2d 1047, and Ex parte Baird,17 S.W.2d 1049, he is entitled to be discharged. In the cases mentioned it was uncontroverted that the alleged fugitive was not within the confines of the demanding state at the time of *Page 454 the commission of the alleged offense. Under the circumstances, this court held that he could not be a fugitive from justice within the terms of the law. In the instant case the proof on the part of the respondent showed that relator was within the confines of the demanding state at the time of the commission of the alleged offense. Manifestly, the cited cases have no application. The fact that relator was not in the county where the offense was alleged to have been committed on July 25, 1930, but was in another county of the demanding state, might raise the affirmative defense of alibi, but that is a question for the demanding state. We quote from Branch's Annotated Penal Code, sec. 248, as follows: "It is not error on a habeas corpus hearing to refuse to hear evidence as to the guilt or innocence of the alleged fugitive, that being a question for the demanding state."
See Ex parte Denning, 100 S.W. 401; Ex parte Hancock,170 S.W. 145; Ex parte McDaniel, 173 S.W. 1019; Ex parte Brown,178 S.W. 366; Ex parte Pinkus, 25 S.W.2d 334.
Believing that relator was properly remanded, the judgment is affirmed.
Affirmed.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.
ON APPELLANT'S MOTION FOR REHEARING.