#### The State *v.*Curry.

*Habeas Corpus.*

(Decided June 30, 1911.

Rehearing denied No. 23, 1911.

56 South. 736.)

1. *Extraditionj Requisition; Exemplification of Papers.*— The Federal Statutes as to authentication of public acts and judicial proceedings in the several states are not applicable to requisition papers, and hence, papers accompanying a requisition for extradition need not be exemplified or authenticated as required by such statute.

2. *Habeas Corpus; Discharge; Conflicting Evidence.*— Where the application is for habeas corpus by one detainel under extradition proceedings, and there being no conflict in the evidence except on the question of whether or not petitioner is a fugitive from justice, his discharge is not warranted, as habeas corpus is not the proper proceeding in which to try the guilt or innocence of the defendant.

Appeal from Jefferson Circuit Court.

Heard before Hon. A. O. Lane.

Application by W. M. Curry for bis discharge from a warrant issued by the governor on extradiction application. From an order granting the prayer of the petitioner the state appeals.

Reversed and remanded.

See also report of this case in 173 Ala.—; 56 So. 735, on the questions propounded by the Court of Appeals to the Supreme Court.

Robert O. Brickell, Attorney General, Percy, Benners & Burr, and A. F. Fite, for petitioner.

The warrant of the governor of the state of Alabama, Avhich was introduced in evidence by the state, made a prima, facie case showing that petitioner was properly in custody, and should be *held.*— Singleton *v.*State, 42 So. 23; *Bobmson v. Flanders,*29 Ind. 10; *Nichols v. Cornelius,*7 Ind. 611; *Davis’ Case,*122 Mass. 328; *Ex parte DeVine,*74 Miss. 715; *Ex parte Muscato,*44 S. C. 335; *Ex*
      *252
      *parte Stanley,*25 Texas App. 372. It was not necessary that any proof should be furnished the governor of the state of Alabama that petitioner was a fugitive from justice, other than the requisition papers which were submitted to *him.*— Pettibone *v. Nichols,*203 U. S. 192, 51 L. Ed. 148; *Ex parte Sheldon,*34 Ohio St. 319; *In re Keller,*33 Fed. 686; *In re Cook,*49 Fed. 833; *Eaton v. West Virginia,*91 Fed. 760; *State v. Justice,*84 Minn. 237; *Katyuga v. Costrove,*66 N. J. Law, 213; *Farrell v. Hanvley,*112 Am. St. Rep. 101, 70 L. R. A. 688; *Roberts v. Reilly,*116 U. S. 81; *Ex parte Sioearengin,*13 S. C. 74; *Ex parte Reggel,*114 U. S. 642; *In re Crennough,*31 Ver. 279; *In re Van Seiver,*42 Neb. 772; *In re Hooper,*52 Wis. 699; *People v. Byrnes,*33 Hun. (N. Y.) 98; *Farrell v. Handley,*78 Conn. 150; 19 Oye. 91. Where the evidence as to whether petitioner was in the state of Oklahoma at the time of the offense is alleged to have been committed was conflicting, he should be held, because habeas corpus is not the proper proceeding in which to try the issue of an *alibi.*— Hyatt *v. State of Neto York,*188 U. S. 710, 47 Law Ed. 661; *Munsey v. Clough,*196 U. S. 374, 49 Law Ed. 518, 25 Sup. Ct. 282; *Bruce v. Rayner,*124 Fed. 483; *Farrell v. Hanoley, v. Ilmoley,*70 L. R. A. 689. It is not essential that the papers accompanying the requisition to the governor of Alabama should be exemplified as required by the Federal statutes, so as to make them admissible in evidence in a court; but only that the papers should be certified as authentic; and this certificate was properly made by the governor of the state of Oklalioma. — Federal Statutes Annotated, Section 5278; 19 Cyc, 91; *Ex parte DeVine,*74 Miss. 718, 22 So. p. 4; *Ex pande Morgan,*20 Fed. 307; *Kurtz v. State,*22 Fla. 36, 1 Am. St. Rep. 173; *Ex parte Danoson,*28 C. C. A. 354; *In re Manchester,*5 Cal. 237; *Davis’ Case,*122*253Mass. 328; *O’Conner’s Case,*38 Minn. 243; *Goss’ Case,*66 Minn. 291. .

F. E. Blackburn, and Thompson & Thompson, for appellee.

It was admissible for petitioner to show that he was not a fugitive from justice.— *Ex parte State in re Mohr,*73 Ala. 503; *Barriere v. The State,*142 Ala. 72. This question was decided by the circuit judge who had the witnesses before him and is *final.*— Jones *v. Leonard,*32 Am. Rep. 116. The papers were not verified as required by the Federal statute. The offense with which the petitioner was charged (embezzlement) is not a common law offense but one purely of statutory origin, and in order to hold the petitioner it must be shown that such an offense existed under the laws of the requesting state. This must be done by the introduction of the statutes of such state as our courts do not take judicial knowledge of the statute of other *states.*— Compton *v. The State,*152 Ala. 68; *Barriere’s Case, supra.*

WALKER, P. J.

On a hearing of the matter presented by the appellee’s petition for the writ of habeas corpus, the sheriff, to whom the writ was addressed, offered in evidence, in support of his return: (1) A demand or requisition for the petitioner made by the governor of Oklahoma upon the governor, of Alabama, which recited that the petitioner stands charged with the crime of embezzlement, committed in the county of Muskogee, in the state of Oklahoma, and that he had fled from the justice of the state of Oklahoma and taken refuge in the state of Alabama.; (2) a copy of an affidavit, made before a justice of the peace in and for said ■county of Muskogee, charging that petitioner had unlawfully, intentionally, etc., embezzled a stated amount *254of money which had come into his possession while acting as manager and agent of the Leeds Woolen Mills, in said Muskogee county, which affidavit was certified as authentic by the governor of Oklahoma; and (3) the warrant of the governor of Alabama for the arrest of the petitioner, reciting that petitioner had been charged with crime, and had been demanded as a fugitive from justice. Tbe petitioner objected, on several grounds, to tbe sufficiency of tbe sherifffs return and of tbe evidence offered in. support of it. On behalf of tbe petitioner, evidence was introduced, tending to prove that he was not in tbe state of Oklahoma at tbe time of tbe commission of tbe offense charged against him. Other proof was offered, tending to rebut or contradict tbe evidence in behalf of tbe petitioner to this effect. At tbe conclusion of tbe evidence, tbe circuit judge made an order discharging tbe petitioner. It is to be inferred that this action was tbe result of a conclusion that in some respect there was a deficiency in tbe evidence offered to support tbe claim that tbe'petitioner Avas legaly detained. Mention will be made of tbe objections which tbe record indicates were principally relied on by tbe petitioner.

It was suggested that tbe papers accompanying tbe requisition upon tbe governor of Alabama should have been exemplified in tbe mode prescribed by tbe federal statute for tbe authentication of public acts and judicial proceedings in the several states. Tbe statute on that subject Avas not applicable. It was not suggested that there Avas a failure to comply with the requirement of the federal extradition statute as to the certificate by tbe demanding governor of tbe authenticity of tbe papers accompanying bis requisition which evidenced the charge of crime. —U. S. Rev. Stat. §5278 (U. S. Comp. St. 1901, p. 3597); 19 Cyc. 91.

*255The most that can be said in behalf of the petitioner as to the evidence on the issue raised as to the fact of his being a fugitive from justice is that the evidence on that subject is in conflict. “The court will not discharge a defendant where there is merely contradictory evidence on the subject of presence in or absence from the (demanding) state, as habeas corpus is not the proper proceeding to try the question of alibi, or any question as to the. guilt or innocence of the accused.” *—Munsey v. Clough,*196 U. S. 364, 375, 25 Sup. Ct. 282, 285 (49 L. Ed. 515; *Bruce v. Rayner,*124 Fed. 481, 62 C. C. A. 501; *McNichols v. Pease,*207 U. S, 100, 2Sup. Ct. 58, 32 L. Ed. 121.

The petitioner objected to the evidence offered, as above stated, in support of the sheriff’s return, upon the grounds, in substance, that, for aught that was shown thereby, petitioner has not been guilty of any violation of any law of the state of Oklahoma; and that the evidence did not show that petitioner had violated any criminal law of the state, of Oklahoma. The judges of this court being unable to reach a unanimous conclusion or decision on the questions raised by these objections the following questions of law were certified to the Supreme Court for its opinion thereon:

“Question 1. On the facts disclosed by the evidence,is it shown that the sheriff is entitled to hold the pe-ti-. tioner, in the absence of proof of the law of the state of Oklahoma which petitioner was charged with having violated?

“Question 2. Is the proof offered sufficient to show that petitioner was legally held by the sheriff, in the absence of proof showing that embezzlement constitutes a crime under the law of the state of Oklahoma?”

The following is the. concluding paragraph of the opinion of the Supreme Court (56 South. 735), which *256constituted its answer to these questions: “The sheriff having shown a warrant from the governor of Alabama, as well as the requisition papers from the governor of Oklahoma, each reciting the jurisdictional facts, and that the petitioner ivas charged with a crime, he made out a prima facie case of lawful detention, and which could only he overcome by some proof on the part of the petitioner that he was not a fugitive, or that the process was *void.—Barricre*Ca*se*(142 Ala. 72, 39 South. 55) and *Singleton Gase*(144 Ala. 104, 42 South. 23) *supra; Compton v.*State, 152 Ala. 68 (44 South. 685). We do not think that the sheriff had to prove a law of Oklahoma covering embezzlement; he made out a -case of lawful detention upon the proof offered by him.” It follows from this conclusion that the petitioner’s objections above mentioned to the sufficiency of the proof offered by the sheriff to show that a criminal law of the state of Oklahoma had been violated could not properly be sustained.

It does not appear to the court that in any other respect was there any deficiency in the proof required to make out a case of lawful detention under requisition proceedings. The conclusion is that the circuit judge erred in discharging the petitioner.

Reversed and remanded.