dissenting.
*394The record clearly reveals the following:
Appellant is charged in Murray County in the state of Oklahoma with the offense of murder, the complaint sworn to on October 13, 1954, alleging the murder of an unknown person on or about October 10, 1954.
Warrant was issued for appellant’s arrest by the magistrate before whom the complaint was made, and the county attorney applied to the Governor of Oklahoma for requisition alleging that appellant had fled to Texas.
The Governor of Oklahoma, on October 19, 1954, issued his requisition requesting the return of appellant to that state, and appointed an agent to receive him.
Appellant was arrested in Tarrant County, Texas, as shown by the return of . the officer bn the habeas corpus writ, as a fugitive from justice, upon a warrant issued by R. S. Callaway, a Justice of the Peace of Tarrant County, Texas. On October 21, 1954, he applied to Honorable David McGee, Judge of Criminal District Court No. 2 of Tarrant County, Texas, for writ of habeaá ‘corpus. The writ was granted and made returnable on October-22,■ 1954, at 10:30 a.m. •
Prior to the hearing on the writ, a hearing was had before the Secretary of State in Austin, and the Governor granted extradition.' Copies of the supporting papers, consisting of the appointment of the agent.by the Governor of Oklahoma for the return of the prisoner, the requisition from the Governor of Oklahoma addressed to the Governor of the State of Texas; the application for requisition by the county attorney of Murray Coúnty, Oklahoma; a certified copy of the complaint filed in said Murray County, Oklahoma, and the warrant of arrest from that county, were offered in "evidence at the' habeas corpus hearing and it was stipulated that they “were used before the Secretary of State on October 19, 1954, for the purpose of obtaining the Governor’s ¡whrrarit;” and were given to relator’s attorney.
The executive warrant which the trial judge ordered to be filed and1 included in the transcript is in proper form and authorizes appellant’s delivery to the agent of the State of Oklahoma for return to that state, and the trial judge certifies that such warrant was present and counsel for both the state and the defense and the court were cognizant of its presence. : ■
*395It is true that neither the fugitive warrant issued by the Tarrant County magistrate, nor the executive warrant, issued by the Governor of Texas was introduced in evidence by .the assistant district attorney of Tarrant County, who appeared for the state.
If the duty of this court be to pass upon the correctness of the procedure at the habeas corpus hearing, then we must hold that counsel for the state erred in failing to formally introduce the executive warrant in. evidence, that .it'might be,. shown' in the statement of facts. ...
. On the other hand, if the duty of this court' is:- to determine whether or not appellant is unlawfully restrained .under...the extradition proceeding, then the order of the district, judge re-* manding him to custody for extradition, should, be. .sustained.
The executive warrant issued by the Governor of Texas was before Judge McGee at the hearing and appellant, through his attorneys, treated it as having been introduced in evidence and assumed the burden of attempting to show its invalidity. That this is true may be demonstrated by the following quotations from the language of appellant’s attorney appearing in the statement of facts: “Your Honor, as we understand the-law, the purpose of this hearing, is on a Writ of habeas corpus filed oh behalf of the Defendant, as the Respondent, and the burden of proof is upon the Defendant. In'that connection, we would like to state to The Court, that when we asked The Court to set the hearing for ten-thirty this morning, we anticipated that all of the papers would be mailed to the Sheriff, and that it would- -not be necessary for the -Defendant to obtain.. a- subpoena duces tecum for those papers on the Secretary of State, or the Governor’s Secretary, in order -to have them here before The Court.
“We naturally know that The State does not need those papers. That they are. the defendant in this' hearing, and the burden is not .on them. All they have to do, as we Understand the law, is to offer the Warrant, and then it is up to us to prove that the extradition hearing was insufficient, that is; that the evidence introduced at the hearing was insufficient. That’s our attack upon this matter at this time, through this Writ.
“I assume from what he said a minute ago, that he does not wish to stipulate that these are all of the papers, that the Governor of Texas used, to grant extradition on, that is, he used it as a basis for granting extradition. And found, by his granting *396extradition, that all of the Uniform Act was complied with, every stipulation.
“That’s our attack upon it; that it was not met; that the requirements were not met; and until we have all of the papers, or can agree that these are all of the papers, we are not ready to proceed.”
And in connection with his request that appellant be released, counsel stated the reasons therefor as follows: “I would like to call The Court’s attention to two or three things. One is, there are several certificates, or purported certificates filed within the papers. One, in which the Justice of the Peace says that he certifies that a man is the Clerk; and that same Clerk comes right back and certifies that the Justice of the Peace is the Justice of the Peace. Nowhere on those instruments do I see, or does there appear to be to me, any kind of a seal, or attesting or an acknowledgment, further than just the blank signature of the official, certifying that Mr. Green is the County Clerk and that Mr. Montgomery is the Justice of the Peace. For that reason, I think there is a fatal defect in the papers that were considered by the Secretary of State, on behalf of the Governor of the State of Texas, who granted the extradition.
“I would like to point out to The Court, additionally, that there is no instrument, no sufficient instrument, signed in affidavit form, purporting to establish that the Defendant was in the State of Oklahoma, at the time of the alleged offense.
“I would like to point out to The Court that neither is there any testimony here, nor was there any testimony offered at all, as the Sheriff has so testified, in the hearing at Austin, identifying this Defendant as being the man that was present in the State of Oklahoma, and the man that was wanted on the warrant for which this man is being held, and for which extradition was granted by the Governor’ of the State of Texas.
“I also call to the Court’s attention, that the Governor of the State of Texas executed this Warrant, but he was not present at the extradition hearing, and did not hold an extradition hearing, and the Statute specifies that he should hold it.
“With those statements, we would like to request that The Court release the Respondent, because the extradition warrant was improperly allowed, and because it was based on a faulty Complaint — that is, not a faulty Complaint, but faulty allegations, and that they do not comply with the Uniform Extradition Act.”
*397This is not, correctly speaking, an extradition case. Extradition is for the Governor and not the courts. This is a habeas corpus case, a case wherein one ordered to be extradited seeks to show that his arrest for extradition is illegal.
The hearing upon a writ of habeas corpus is not governed by the ordinary rules regulating trials. 21 Texas Jur. p. 441, Sec. 20; p. 457, Sec. 38.
Art. 858 C.C.P., relating to habeas corpus cases appealed to this court, provides in part that the appeal shall be heard and determined upon the law and the facts arising upon record, and “No incidental question which may have arisen on the hearing of the application before the court below shall be revised. The only design of the appeal is to do substantial justice to the party appealing.”
Under the provisions of Art. 157, C.C.P.: “If it appears that the applicant is detained or held under a warrant of commitment which is informal or void, yet, if from the document on which the warrant was based, or from the proof on the hearing of the habeas corpus, it appears that there is probable cause to believe that an offense has been committed by the prisoner, he shall not be discharged, but shall be committed or held to bail.”
This article is a part of Chapter 7 of the Code of Criminal Procedure. Art. 176 declares that the chapter applies to all cases of habeas corpus for the enlargement of persons illegally held in custody or in any manner restrained of their personal liberty.
Appellant’s attack upon the extradition proceeding was not sustained by the trial judge nor by this court, but under the opinions of my brethren relator is to be released from custody because, on the hearing of the habeas corpus proceeding, the executive warrant was not offered in evidence; this notwithstanding the fact that in a proceeding which appears in all things regular, the Governor of this State has granted the request of the Governor of Oklahoma and has ordered his return to that state to answer the charge of murder.
As to the suggestion that appellant was deprived of the opportunity to object to the introduction of the executive warrant, upon what valid ground could objection have been made? And if made and sustained, what would be the result?
*398The answer may be found in Ex parte Gordon, 118 Texas Cr. Rep. 150, 37 S.W. 2d 1023: “if there be evidence improperly received or rejected, the reviewing court can disregard or consider the evidence according :to its merit.”
Believing that appellant should not be discharged, I respectfully dissent.