ON appellant’s motion for rehearing.
DAVIDSON, Judge.Appellant insists that we were in error in reaching the conclusion that he was not authorized to impeach the sufficiency of the complaint by proving that the facts therein stated were based by the affiant upon information and belief and not upon actual knowledge, as appeared from the face of the affidavit.
We remain convinced of the correctness of that conclusion, as supporting which see Ex parte Kinsloe, 134 Tex. Cr. R. 299, 115 S. W. 2d 955.
In those cases wherein he held that extradition would not be authorized where the charge in the demanding state was by information, we had reference to the presentment by the prosecuting attorney upon information of the accusatory pleading. Such pleadings showed, upon their face, to be informations as distinguished from affidavits or complaints.
The fact that the instant complaint was, as a matter of law, made upon information and belief would not constitute it an information as that term is used in describing an accusatory pleading. Hence, the question here is not whether the charge in the demanding state rests upon information but whether it rests upon a wholly insufficient affidavit or complaint.
Under the laws of this state (Art. 222, Vernon’s C. C. P.) a complaint may be founded upon the oath of the affiant that he “has good reason to believe, and does believe” the facts alleged therein. Of necessity, such an affidavit may be based upon in*672formation and belief. Under such statute, the instant complaint would have been valid under the laws of this state.
We are referred to no statute of the demanding state (California) to the contrary.
From what has been said, the conclusion is expressed that not only was appellant unauthorized to impeach the complaint, but, in addition, the facts relied upon to impeach the same did not defeat extradition by the Governor of this state.
The motion for rehearing is overruled.
Opinion approved by the court.