This is an appeal from a Judgment of the Circuit Court of Etowah County denying appellants' discharge in a habeas corpus proceeding.
The petitioners were held under a rendition warrant issued by the Governor of Alabama upon requisition of the Governor of Tennessee.
The rendition warrant of the Governor of Alabama recites:
"Whereas his Excellency, Frank G. Clement, Governor of the state of Tennessee, by requisition dated the 12th day of November, 1965, has demanded of me, as Governor of the State of Alabama, the surrender of John Beasley and Robert Beasley who, it appears, is charged by State Warrant, in the County of Smith in said State, with the crime of Felonious Assault, as shown by Certified Copy of State Warrant (a duly certified copy of which State Warrant accompanies said requisition) and it appearing that said John Beasley and Robert Beasley have fled from justice in said State, and taken refuge in the State of Alabama."
The recital in the rendition warrant that the accused are charged by "State Warrant," is insufficient to meet the requirements of Section 50, Title 15, Code of Alabama 1940; Russell v. State, 251 Ala. 268, 37 So.2d 233; Baugh v. State, 275 Ala. 319, 154 So.2d 674.
The requisition of the Governor of Tennessee shows:
"The undersigned, Governor of the State of Tennessee, would inform your excellency that John Beasley and Robert Beasley of this State, charged with the crime of felonious assault as will more fully appear by a copy of an State Warrant hereunto annexed, which I certify to be authentic, is a fugitive from the Justice of this State, was in the State of Tennessee at the time said crime was committed and has fled from Justice from the State of Tennessee, and now supposed to be within the limits of the State of Alabama."
The accusation certified to be authentic by the Governor of Tennessee reads, in pertinent part:
*Page 249"STATE WARRANT — With Waiver — Court of General Session State of Tennessee, Smith County
Personally appeared before me, the undersigned Judge for said County, the undersigned affiant, and made oath in due form of law, * * * * *.
Subscribed and sworn to s/ — s/ TaylorBoyd before me this 11 day of Affiant Sept., 1965. s/ — s/ Joe H. Wilson Clerk, of the General Sessions Court."
The Clerk of the General Sessions Court is not shown to be a "magistrate." Boothe v. State, ante p. 119, 180 So.2d 450.
The petitioners were entitled to be discharged.
Reversed and remanded.