The only question we deem necessary to discuss is the strenuous insistence of relator that he is improperly held under an executive warrant of the Governor of Texas because the demand for his extradition by the Governor of New York failed to show a seal of the State of New York and was not authenticated by the Secretary of State. The only provision of our State Constitution requiring the use of a seal of which we are aware is found in Art. 4, Sec. 20, and is in the following language:
"All commissions shall be in the name and by the authority of the State of Texas, sealed with the State Seal, signed by the Governor and attested by the Secretary of State."
Whatever may be found in the Constitutions and laws of other states, there is neither in this State nor in the Constitution and laws of the United States a provision requiring the authentication of such a demand in the manner and form claimed by relator herein. *Page 333
The jurisdictional facts authorizing the extradition of relator are (1) that he must be shown to have been charged with a crime in the demanding state, and (2) to be a fugitive from justice therefrom and bodily present in this state. The Governor of this State had a right to hear evidence in this case and to satisfy himself as to whether or not relator was a fugitive from justice. Speaking of this question, the United States Supreme Court says:
"This is a question of fact which the Governor upon whom the demand is made must decide from such evidence as is satisfactory to him. Strict common law evidence is not necessary. The statute does not provide for the particular kind of evidence to be produced before him, nor how it shall be authenticated, but it must be at least evidence which is satisfactory to the mind of the Governor." Munsey v. Clough,196 U.S. 372, 49 Law Ed. 517; Roberts v. Reilly, 116 U.S. 80, 29 Law Ed. 544.
The burden is always upon an applicant for writ of habeas corpus in extradition proceedings to overcome the presumption that the Governor's formal extradition warrant was issued upon the proper authority. Ex parte Ponzi, 290 S.W. 170; Ex parte Hall, 284 S.W. 550; Ex parte Yawman, 18 S.W.2d 647. It was the right of the Governor of Texas to satisfy himself that the written demand made upon him by the Governor of New York State for relator was genuine. The presumption is that he did so and in the absence of some provision of law requiring what is claimed by relator, we think the same unnecessary. The right of the Governor to satisfy himself that a demand for a fugitive from justice is genuine and actually comes from the executive of the demanding state would seem to afford ample protection to citizens of this state. There is this question, however, to be noted. The agent appointed by the Governor of New York State to receive relator is named in his extradition demand upon the Governor of Texas for the surrender of relator. To this extent such demand may be regarded as a commission to the agent named to receive relator and must under the provisions of the Constitution of Texas be "sealed with the State seal and attested by the Secretary of State." Art. 1005, C. C. P., 1925, is as follows:
"When the Governor deems it proper to demand a person who has committed an offense in this State and has fled to another State or territory, he may commission any suitable person to take such requisition. The accused, if brought back to the State, shall be delivered up to the sheriff of the county in which it is alleged he has committed the offense." *Page 334
Nothing to the contrary appearing, we presume of the laws of New York State regulating such a matter to be the same as Texas. The judgment in this case remands relator to the custody of the Sheriff of Bexar County and to the agent of the demanding state. In so far as it remands to the custody of the agent of New York State, who does not appear to have been properly commissioned to receive him, the judgment is erroneous. The document purporting to come from the Governor of New York State is regarded as legally sufficient as a demand for the surrender of relator, but insufficient as a commission to the agent of such state to receive him. Likewise the executive warrant of the Governor of Texas for relator's arrest is valid except in so far as it commands that relator be turned over to the agent named in said requisition from the Governor of New York. This does not necessarily entitle relator, however, to his discharge since provisions of the United States Statutes appear to authorize the holding of fugitives from justice under the circumstances shown here for six months from the time of the arrest, at which time the prisoner may be discharged. See Par. 10,126 (R. S. Par. 5275), United States Compiled Statutes, 1916. We have no right to assume that the Sheriff of Bexar County will improperly surrender the custody of relator. The judgment will therefore be reformed so as to remand relator to the custody of the Sheriff of Bexar County, to be surrendered by him to a proper agent of the State of New York, provided he appears within six months from the time of the arrest of relator, and if he fails to do so relator to be by him discharged.
As so reformed, the judgment will be affirmed, and the motion for rehearing is overruled.
Overruled.