Relator was charged by indictment of a grand jury of Simpson County, Mississippi, of the offense of a burglary at nighttime, and under such an indictment he was found in Smith County, Texas, and by peace officers held thereunder. Upon an application for his extradition the Governor of this State ordered relator into the custody of an agent of the State of Mississippi to be taken back to said State in order to answer such indictment. Relator was duly granted a writ of habeas corpus, and at a hearing before the district judge of said court, in said county, he was remanded to the custody of such agent to be returned to the State of Mississippi. From the order of such judge he presents this, his appeal.
There is naught offered herein save a question of fact, relator contending strenuously, and such contention supported by many witnesses, that he is not a fugitive from justice, was not in the State of Mississippi at the time such offense was alleged to have been committed, and was never in such state in his life. Just as strenuously does the State contend, and show by witnesses, that relator was present at the time and place of the commission of the alleged offense. We, therefore, have a mooted question of fact, with believable testimony on both sides thereof, and we find ourselves in the same position of the trial court wherein he held that a jury in Mississippi could pass upon this question of fact at the proper time. Of course, if it was conclusively shown that relator was not present in the State of Mississippi at the time of the commission of the alleged offense, then he could not be termed a fugitive from justice, and should be discharged hereunder. See Ex parte Baird, 17 S.W.2d 1049, 112 Tex.Crim. R.. That was the question presented to the trial court, relator's absence from such state being affirmed by his array of witnesses, and the contrary of such proposition being supported by the array of State's witnesses, who just as positively asserted relator's presence in such sister state at the time of the commission of such alleged offense.
Under the facts presented we think the trial court's ruling herein was correct, and its judgment remanding relator is therefore affirmed. *Page 618
ON MOTION FOR REHEARING.