This is an appeal from an order entered in a habeas corpus case remanding appellant to custody for extradition to Iowa.
The executive warrant issued by the Governor of Texas directing the arrest of Mike Kaufman and his delivery to the agent of the State of Iowa, for return to that state, was made a part of Sheriff Wright’s return on the writ of habeas corpus and was offered in evidence over the objection that appellant had not been identified as the Mike Kaufman named therein.
The sole-question raised on this appeal is presented by this ruling. .:
Appellant concedes that when the evidence shows that a proper executive warrant has been issued for the extradition of the relator, it is then incumbent upon him to show that he is not the person charged in the demanding state. We have so held in many cases, including: Ex parte McMillan, 156 Texas Cr. Rep. 355, 242 S.W. 2d 384; Ex parte Cox, 274 S.W. 2d 549; Ex parte Lancaster, 254 S.W. 2d 385; Ex parte Quale, 164 Texas Cr. Rep. 313, 298 S.W. 2d 174; Ex parte Fuqua, 162 Texas Cr. Rep. 126, 283 S.W. 2d 50; Ex parte Hoover, 164 Texas Cr. Rep. 251, 298 S.W. 2d 579; Ex parte Shirley, 164 Texas Cr. Rep. 447, 299 S.W. 2d 579; Ex parte Shirley, 164 Texas Cr. Rep. 447, 299 S.W. 2d 701; Ex parte Key, 164 Texas Cr. Rep. 524, 301 S.W. 2d 90.
This is not, however, the identity issue which appellant suggests. It is his contention that Sheriff Wright, the respondent, failed to discharge the burden resting upon him to show that the Mike Kaufman named in the executive warrant was the identical Mike Kaufman who was arrested under said warrant and became the relator in the habeas corpus proceeding.
The executive warrant under which appellant was held for extradition and which was, attached to the sheriff’s return of the writ of habeas corpus was properly admitted in evidence.
Appellant correctly contends that the burden of proof is upon the demanding state to show, that the person taken into custody and held for extradition is the identical person named in the Governor’s Warrant, where such identity is put in issue.
*57The rule applicable is thus stated in 39 C.J.S., Sec. 39(a), p. 551-2:
“A mistake in identity, in that the person held for extradition is not in fact the person demanded or named in the governor’s warrant, may be shown on habeas corpus and is ground for discharge. The burden of proof is on the demanding state to show identity of prisoner with accused where such identity is put in issue. Although it has been held that the identity of the person taken in custody with the person who is claimed as a fugitive from justice must be clearly established, it is generally held that the burden of going forward with the evidence shifts to the prisoner where a prima facie case of identity is made out, as by the presumption arising from identity of name.”
Appellant offered no evidence to meet such presumption. Instead he1 offered in evidence the requisition and the supporting papers from the demanding state among which was the application for requisition made by the county attorney of Polk County, Iowa, which avers in part: “7a. That the accused is in custody of the Sheriff of Tarrant County, at Fort Worth, Texas; hearing set for January 25, 1958, on fugitive warrant. Now under arrest.”
This evidence clearly brings the case within the holding in Ex parte McMillan, 156 Texas Cr. Rep. 355, 242 S.W. 2d 384, wherein upon similar facts we said:
“The evidence showing that proper executive warrant had been issued for the extradition of relator, the person then in custody of the Sheriff of Reeves County, at Pecos, it was incumbent upon relator to show that he was not in fact the person wanted by the state of New York for the offense charged.
“In absence of such proof, the district judge was correct in remanding relator. See Ex parte Jowell, 87 Texas Cr. Rep. 556, 223 S.W. 456, 11 A.L.R. 1407; Branch’s Ann. P.C., p. 155, Sec. 248.”
The identical name alone, in the absence of issue being raised, appears under the rule above quoted from Corpus Juris Secun-dum to be sufficient to require the relator to go forward with proof to the contrary. Ex parte Holland, 53 Texas Cr. Rep. 301, 108 S.W. 1181, supports such rule. See also 84 A.L.R. 341. We have found no decision to the contrary in this or any other state.
*58No evidence was offered that appellant was not the Mike Kaufman named in the Governor’s warrant. The supporting papers he offered sustained the prima facie case made by the identity of name and showed that the person the Governor ordered extradited was the Mike Kaufman who was in custody of the sheriff of Tarrant County on fugitive warrant.
We desire to make it clear that we do not hold or suggest that the presumption arising from the executive warrant and identity of name cannot be overturned. Had issue been raised that appellant was not the Mike Kaufman the Governor of Texas ordered extradited, or had appellant so testified or offered evidence to that effect, the presumption from the identity of name would have been destroyed and would not constitute evidence on the issue of identity.
The judgment remanding relator to custody for extradition is affirmed.