ON MOTION FOR REHEARING.
HAWKINS, Judge.In his motion for rehearing appellant challenges the correctness of the following statement in our original opinion, to-wit:
“It seems that the proceedings were regular as no attack is made upon the requisition, the executive warrant, or the complaint charging appellant with having committed the offense of robbery by the use of firearms,” etc.
He points out no irregularity, but insists that inasmuch as the complaint which was offered in evidence charged him with having committed the offense of robbery by the use of firearms in the County of Choctaw and State of Oklahoma on or about the 5th day of October, 1934, and the uncontradicted testimony shows that the alleged offense was committed on or about the 5th day of October, 1933, that no legal authority existed for the issuance of the extradition warrant, and that the executive warrant issued in pursuance of the demand by the Governor of Oklahoma based upon such complaint was void. We cannot agree with him. The documents upon their faces appear to be regular. The fact that the complaint charged that the appellant committed the offense on or about the 5th day of October, 1934, when in truth and in fact it was committed on or about the 5th day of October, 1933, would not vitiate the proceedings, nor show any irregularity therein. Appellant admits, however, that he was in the demanding state at the alleged time of the commission of the offense, to-wit: October 5, 1933. Inasmuch as the offense, if of either date, was not barred by the statute of limitations, it seems to us to be immaterial whether the date charged be the true date or not, so long as it is made to appear that the offense was committed anterior to the time of the presentment of an indictment or the filing of a complaint.
Appellant has directed our attention to what he contends is an erroneous statement in our opinion in which we said:
*601“The question as to whether appellant was in the State of Oklahoma at the time of the commission of the alleged offense, was a controverted issue,” etc.
Even if it be conceded that the uncontradicted testimony shows that appellant was not in the State of Oklahoma on the 5th day of October, 1934, as charged in the complaint, yet it is equally uncontradicted that he was in said state on October 5, 1933, at the time the alleged offense was in fact committed. However, we do not regard the difference between the time of the commission of the offense as charged in the complaint and the actual time of the commission of the offense as proven by the uncontradicted testimony of any importance or as a controlling fact in our decision. There being no question of limitation the statement of an incorrect date in the complaint is not material, as long as the date on which the offense is alleged to have been committed is anterior to the return of the indictment or the filing of the complaint, as hereinabove stated by us.
Appellant requests us to decide whether or not F. A. Dale, with whom appellant returned to the State of Texas, was a de facto officer. We do not deem it necessary to decide this question because F. A. Dale had no warrant which authorized him to take appellant in charge and bring him from the State of Oklahoma to the State of Texas. If appellant had declined to come willingly, Dale might not have had any legal authority to forcibly take him from said state and bring him to Texas. Hence appellant’s act in leaving Oklahoma and coming to Texas with his lawyer, the said Mr. Dale, was a voluntary act on his part. If, however, we understand appellant’s contention correctly, he takes the position that since the authorities of the State of Oklahoma released him and' permitted him to accompany his said lawyer from the State of Oklahoma to the State of Texas where he was delivered to the Sheriff of Fannin County, and then taken to the state penitentiary where he served his sentence, he would not be a fugitive from justice. While the authorities on this question are not entirely uniform, yet it appears that the weight of authority is against appellant’s contention.
In the case of Roberts v. Reilly, 116 U. S., 80, the Supreme Court of the United States said:
“To be a fugitive from justice, in the sense of the Act of Congress regulating the subject under consideration, it is not necessary that the party charged should have left the state in which the crime is alleged to have been committed, after an *602indictment found, or for the purpose of avoiding a prosecution anticipated or begun, but simply that, having within a state committed that which by its laws constitutes a crime, when he is sought to be subjected to its criminal process to answer for his oifense, he has left its jurisdiction and is found within the territory of another.”
In the case of Bassing v. Cady, 208 U. S., 386, Bassing was charged by indictment with the crime of grand larceny, alleged to have been committed on the 6th day of February, 1907, and on the 14th of March of that year the Governor of New York made his requisition to the Governor of Rhode Island for the arrest of Bassing as a fugitive from justice. The requisition was honored by the Governor of Rhode Island and Bassing was taken to New York. He was there arraigned and pleaded to the indictment. After one or two continuances the district attorney moved to dismiss the indictment, stating orally, as a reason for his action, that he did not have sufficient evidence to hold the accused. The motion was sustained and Bassing returned to Rhode Island without any objection on the part of the New York authorities. Shortly thereafter a second indictment was found in the New York court against Bassing for the same offense as charged in the former indictment, and this was the basis of the second requisition upon the Governor of Rhode Island on the 14th of June, 1907. Upon the requisition, the Governor of Rhode Island issued the warrant of arrest of which Bassing complained in his petition for a writ of habeas corpus. In that case as in the case under consideration Bassing took the position that he was not a fugitive from justice, but the court held that he was none the less such fugitive within the meaning of the Constitution and laws of the United States, because after the dismissal of the first indictment he left New York and returned to Rhode Island with knowledge of and without objection by the New York authorities.
In the case of Illinois Ex Rel McNichols v. Pease, 207 U. S., 105, the Supreme Court of the United States said:
“A person charged with crime against the laws of a state, and who flees from justice, that is, after committing the crime leaves the state, in whatever way or for whatever reason, and is found in another state, may, under the authority of the Constitution and the laws of the United States, be brought back to the state in which he stands charged with the crime, to be there dealt with according to law.”
See Innes v. Tobin, 240 U. S., 127.
We have reached the conclusion that our original opinion *603was correct. It is therefore ordered that the appellant’s motion for rehearing be overruled.
Overruled.