Ex Parte Cooper

295 S.W.2d 906, 163 Tex. Crim. 642, 1956 Tex. Crim. App. LEXIS 1202

Opinion

ON MOTION FOR REHEARING

MORRISON, Presiding Judge.

Our original opinion is withdrawn.

This is an appeal from an order of the district court of Dallas County remanding relator to the custody of the sheriff of said county for delivery to an agent for the State of Colorado.

In Ex parte Peairs, 162 Tex. Cr. Rep. 243, 283 S.W. 2d 755, there was an affirmative showing in the record that the Constitution and laws of the State of Arkansas authorized prosecution for all offenses upon an information. It was because of this proof that we held the affidavit was sufficient to support the information.

There is no showing in this record that the laws of Colorado are different from those of this state, and we must assume that prosecution for the felony offense herein involved is not authorized by Colorado law upon an information. Ex parte Gardner 159 Tex. Cr. Rep. 365, 264 S.W. 2d 125. For that reason, extradition cannot be authorized by the information and affidavit before a notary public on file herein, as was done in Ex parte Peairs, supra.

The second affidavit which is attached to the warrant, under category 3 of said article as is enumerated in the above case, will not authorize extradition because it is based upon information and belief, and also the warrant was not issued by such magistrate.

The judgment is reversed and the cause remanded.