Townsend, J.
The appellant has filed four specifications of error, which are as follows: “Specifications of error: (1) The court erred in not discharging the petitioner because no authenticated copy of indictment charging the appellant with murder in the first degree was annexed to the requisition. (2) The court erred in holding that the certificate of the governor of Arkansas’ was sufficient authentication of the paper annexed to the requisition. (3) The court erred in refusing to permit the petitioner to introduce evidence to prove that he was not a fugitive from the justice of Arkansas. (4) The court erred in denying the petition of the appellant and honoring the requisition, because he was without power under the law and constitution, to honor the requisition for the extradition of the petitioner.”
[488]*488The statute of the United States under which the requisition for this appellant was issued is as follows: “Section 5278. Whenever the executive authority of any state or territory demands any person as a fugitive from justice, of the executive authority of any state or territory to which, such person has fled, and produces a copy of an indictment found or an affidavit made before a magistrate of any state or territory, charging the person demanded with having committed treason, felony, or other crime, certified as authentic by the governor or chief magistrate of the state or territory from whence the person so charged has fled, it shall be the duty of the executive authority of the state or territory to which such person has fled to cause him to be arrested and secured and to cause notice of the arrest to be given to the executive authority making such demand, or to the agent of such authority appointed to receive the fugitive, and to cause the 'fugitive to be delivered to su’ch agent when he shall appear. If no such agent appears within six months from the time of arrest, the prisoner may be discharged. All costs or expenses, incurred in the apprehending, securing and transmitting such fugitive to the state or territory making such demand shall be paid by such state or territory.” Rev. St. U. S. p. 1022, § 5278.
Appellant’s counsel cite the case of Ex Parte Hart, 11 C. C. A. 165, 63 Fed. 249, 28 L. R. A. 801, as follows: “ ‘The governor of Washington caused a requisition to be issued in which is recited that “it appears by a copy of indictment, which is herewith annexed, and which I certify to being authentic, and duly authenticated,” etc. On examination of the papers annexed we find that no such copy of indictment is attached. The absence of the copy of indictment is fatal to the validity of the warrant.’” The foregoing quotation, by itself, is misleading. It appears from an examination of the case that the governor of .Washington on the 23d day of December, 1893, issited a [489]*489requisition on the governor of Maryland, based upon an information, as follows: “Wherein it appears by a copy of information which is hereunto annexed, and which I certify to be authentic,” etc.; and on December 27, 1893, the governor of Washington issued another requisition on the governor of Maryland for the same party, which recited as follows: “Whereas, it appears by a copy of indictment which is hereunto annexed, and which I certify to be authentic,” etc. It appears from an examination of the papers attached to both of said requisitions that each were based on an information filed by the prosecuting attorney, and that there was no “copy of indictment” attached to either requisition. The court in said case also says: “The governor of the state of Washington evidently reached the conclusion that the requisition made by him on the 23d of December, 1893, was defective, for we find that he caused another to be issued on the 27th day of December, 1903, in which it is recited that “it appears by a copy of indictment, which is herewith annexed, and which I certify to be authentic and duly authenticated in accordance with the laws of this state, that Samuel H. Hart stands charged with the crime of larceny by embezzlement/ etc. On examination of the papers annexed, we find that no such copy of indictment is attached, but that the copy of an information filed by the prosecuting attorney on the 27th day of December, 1893, against said Hart, is filed with and made part of the papers with the requisition. The absence of the copy of the indictment is fatal to the validity of the warrant, which does not pretend to be founded on the copy of information nor of affidavit, but of the indictment alone. The copy of tbe information does not support the requisition, and, if it did, for the reasons heretofore given, would not be sufficient. * * * We find that the requisitions issued by the governor of the state of Washington did not comply with the law, and that the governor of the state of Maryland was not furnished with a copy of either an indictment or affidavit made [490]*490as required by section 5278 of the Revised Statutes of the United States, and consequently we hold that the warrant of removal is void.” The foregoing is not the case at bar, as an indictment is attached to the requisition in this case, as required by said section 5278, and the court simply holds that the requisition may be examined to ascertain if said act of congress has been complied with. In the case of Ex parte Thornton, 9 Tex. 635, the only question decided was that the warrant issued by the governor of Texas was not sufficient to hold the prisoner, for the reason that it did not show that it was based on a requisition of the governor of Arkansas, “accompanied with a copy of an indictment found,” etc., as follows: “Hemphill, C. J. The relator insists on his discharge on the ground of the insufficiency and illegality of the warrant in this: that it'does not show by recital that the representation and demand of the governor of the state of Arkansas was accompanied with a copy of an indictment wdth a copy of an indictment found, or an affidavit made before some magistrate of the state of Arkansas, certified to by the said executive as being duly authenticated, and charging the relator with having committed the crime of forgery .within the said state; and we are of opinion that, on the ground set forth, he is entitled to his discharge.” It has no bearing on the case at bar whatever. The language of the act of congress is that the governor issuing the requisition must produce “a copy of an indictment found or an affidavit made, charging the person demanded with having committed treason, felony, or other crime, certified as authentic by the governor.” In this case there is a copy of an indictment charging the appellant with a crime, and certified as authentic by the governor. This complied with the statute, as it expressly authorizes the governor to make the certificate required, and it disposes of the first two assignments of error.
The alleged error in the third specification is that the court refused to allow petitioner to introduce evidence that he was not [491]*491a fugitive from justice. We think that whether or not he was a fugitive from justice is a question of fact, as stated by Justice' Matthews in Roberts vs Reilly, 116 U. S. 80, 6 Sup. Ct. 291, 29 L. Ed.
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Townsend, J.
The appellant has filed four specifications of error, which are as follows: “Specifications of error: (1) The court erred in not discharging the petitioner because no authenticated copy of indictment charging the appellant with murder in the first degree was annexed to the requisition. (2) The court erred in holding that the certificate of the governor of Arkansas’ was sufficient authentication of the paper annexed to the requisition. (3) The court erred in refusing to permit the petitioner to introduce evidence to prove that he was not a fugitive from the justice of Arkansas. (4) The court erred in denying the petition of the appellant and honoring the requisition, because he was without power under the law and constitution, to honor the requisition for the extradition of the petitioner.”
[488]*488The statute of the United States under which the requisition for this appellant was issued is as follows: “Section 5278. Whenever the executive authority of any state or territory demands any person as a fugitive from justice, of the executive authority of any state or territory to which, such person has fled, and produces a copy of an indictment found or an affidavit made before a magistrate of any state or territory, charging the person demanded with having committed treason, felony, or other crime, certified as authentic by the governor or chief magistrate of the state or territory from whence the person so charged has fled, it shall be the duty of the executive authority of the state or territory to which such person has fled to cause him to be arrested and secured and to cause notice of the arrest to be given to the executive authority making such demand, or to the agent of such authority appointed to receive the fugitive, and to cause the 'fugitive to be delivered to su’ch agent when he shall appear. If no such agent appears within six months from the time of arrest, the prisoner may be discharged. All costs or expenses, incurred in the apprehending, securing and transmitting such fugitive to the state or territory making such demand shall be paid by such state or territory.” Rev. St. U. S. p. 1022, § 5278.
Appellant’s counsel cite the case of Ex Parte Hart, 11 C. C. A. 165, 63 Fed. 249, 28 L. R. A. 801, as follows: “ ‘The governor of Washington caused a requisition to be issued in which is recited that “it appears by a copy of indictment, which is herewith annexed, and which I certify to being authentic, and duly authenticated,” etc. On examination of the papers annexed we find that no such copy of indictment is attached. The absence of the copy of indictment is fatal to the validity of the warrant.’” The foregoing quotation, by itself, is misleading. It appears from an examination of the case that the governor of .Washington on the 23d day of December, 1893, issited a [489]*489requisition on the governor of Maryland, based upon an information, as follows: “Wherein it appears by a copy of information which is hereunto annexed, and which I certify to be authentic,” etc.; and on December 27, 1893, the governor of Washington issued another requisition on the governor of Maryland for the same party, which recited as follows: “Whereas, it appears by a copy of indictment which is hereunto annexed, and which I certify to be authentic,” etc. It appears from an examination of the papers attached to both of said requisitions that each were based on an information filed by the prosecuting attorney, and that there was no “copy of indictment” attached to either requisition. The court in said case also says: “The governor of the state of Washington evidently reached the conclusion that the requisition made by him on the 23d of December, 1893, was defective, for we find that he caused another to be issued on the 27th day of December, 1903, in which it is recited that “it appears by a copy of indictment, which is herewith annexed, and which I certify to be authentic and duly authenticated in accordance with the laws of this state, that Samuel H. Hart stands charged with the crime of larceny by embezzlement/ etc. On examination of the papers annexed, we find that no such copy of indictment is attached, but that the copy of an information filed by the prosecuting attorney on the 27th day of December, 1893, against said Hart, is filed with and made part of the papers with the requisition. The absence of the copy of the indictment is fatal to the validity of the warrant, which does not pretend to be founded on the copy of information nor of affidavit, but of the indictment alone. The copy of tbe information does not support the requisition, and, if it did, for the reasons heretofore given, would not be sufficient. * * * We find that the requisitions issued by the governor of the state of Washington did not comply with the law, and that the governor of the state of Maryland was not furnished with a copy of either an indictment or affidavit made [490]*490as required by section 5278 of the Revised Statutes of the United States, and consequently we hold that the warrant of removal is void.” The foregoing is not the case at bar, as an indictment is attached to the requisition in this case, as required by said section 5278, and the court simply holds that the requisition may be examined to ascertain if said act of congress has been complied with. In the case of Ex parte Thornton, 9 Tex. 635, the only question decided was that the warrant issued by the governor of Texas was not sufficient to hold the prisoner, for the reason that it did not show that it was based on a requisition of the governor of Arkansas, “accompanied with a copy of an indictment found,” etc., as follows: “Hemphill, C. J. The relator insists on his discharge on the ground of the insufficiency and illegality of the warrant in this: that it'does not show by recital that the representation and demand of the governor of the state of Arkansas was accompanied with a copy of an indictment wdth a copy of an indictment found, or an affidavit made before some magistrate of the state of Arkansas, certified to by the said executive as being duly authenticated, and charging the relator with having committed the crime of forgery .within the said state; and we are of opinion that, on the ground set forth, he is entitled to his discharge.” It has no bearing on the case at bar whatever. The language of the act of congress is that the governor issuing the requisition must produce “a copy of an indictment found or an affidavit made, charging the person demanded with having committed treason, felony, or other crime, certified as authentic by the governor.” In this case there is a copy of an indictment charging the appellant with a crime, and certified as authentic by the governor. This complied with the statute, as it expressly authorizes the governor to make the certificate required, and it disposes of the first two assignments of error.
The alleged error in the third specification is that the court refused to allow petitioner to introduce evidence that he was not [491]*491a fugitive from justice. We think that whether or not he was a fugitive from justice is a question of fact, as stated by Justice' Matthews in Roberts vs Reilly, 116 U. S. 80, 6 Sup. Ct. 291, 29 L. Ed. 544, and in the same case the learned judge decides1 what it is to be a fugitive from justice: “To be a fugitive from justice, in the sense of the act of congress regulating the subject under consideration, it is not necessary that the party charged should have left the state in which the crime is alleged to have been committed, after an indictment found, or for the purpose of avoiding a prosecution anticipated or begun, but simply, that having within a state committed that which by its laws constitutes a crime, when he is sought to be subjected to its criminal process to answer for his offense he has left its jurisdiction, and is found within the territory of another.” Roberts vs Reilly 116 U. S. 97, 6 Sup. Ct. 291, 29 L. Ed. 544. In Ex parte Reggel, 114 U. S. 642, 5 Sup. Ct. 1148, 29 L. Ed. 250, Justice Harlan said: “In other words, the appellant was entitled under the act of congress, to insist upon proof that he was within the demanding state at the time he is alleged to have committed the crime charged, and subsequently withdrew from her jurisdiction, so that he could not be reached by her criminal process. The statute, it is to be observed, does not prescribe the character of such proof; but that the executive authority of the territory was not required, by the act of congress, to cause the arrest of appellant, and his delivery to the agent appointed by the governor of Pennsylvania, without proof of the fact that he was a fugitive from justice, is, in our judgment, clear from the language of that act.” It appears from the petition of appellant as follows: “That your petitioner is a native of the state of Arkansas; that he was born and reared in Calhoun county,'in said state, and is now twenty-five years of age; that he emigrated from said county and state to the Creek Nation in 1897, and has resided in said nation ever since.” It appears from the indictment attached to the requisition that the crime charged was [492]*492committed in July, 1895, and it thus appears by appellant's own admission that he was a resident of Arkansas at the date of the commission of the crime, and had subsequently removed to the Creek Nation. It appears that some proof was also taken before the court at the hearing of this application as follows: “Q. State your name, residence, and occupation. A. W. H. Furlow, sheriff and collector of Calhoun county, Arkansas. Q. Are you the person who is appointed agent of the governor in this requisition? A. Yes, sir. Q. Are you acquainted with the defendant, John Dickson? A. Yes, sir. Q. Is this defendant, who is in the custody of Leo E. Bennett, United States marshal of this district, the same person who is charged with crime of being accessory to the crime of murder, the same party who is here? A. Yes, sir. Q. Is he to be tried for murder in your county? A. Yes, sir. Q. How long have you known him? A. Ever since he was a small boy. Q. What is his real name? A. John Dickinson. Q. How do you spell it? A. Dickinson. Q. When did he leave Arkansas? A. He left Arkansas about three or four years ago. I don't know for certain just when he did leave. He has been gone some three or four years, though. Q. Was he in Calhoun county at the time this indictment was filed? A. I am not able to say about that, sure. Q. The 16th of July, 1896. How long have you been sheriff of that county. A. A year. Q. Have you searched for this man? A. Yes, sir. Q. Did you ever find him in that state of Arkansas? A. No, sir. Q. Is this the first time you have obtained any trace of his whereabouts? A. This is the first time. Q. Did you know the party who was killed? A. Yes, sir. Q. As a resident of that county, were you familiar with the facts and history of the crime?' A. Yes, sir. Q. And this is the identical person? A. That is the man.” The foregoing evidence was sufficient, in our judgment to satisfy the court that appellant was a fugitive from justice and disposes of the third assignment of error.
[493]*493Appellant, for his fourth assignment of error, insists that the court was without power, under the law and constitution, to honor the requisition of the governor of Arkansas. The act of congress of May 2, 1890, § 41, provides as follows: “Sec. 41. That the judge of the United States court in the Indian Territory shall have the same power to extradite persons who have taken refuge in the Indian Territory, charged with crimes in the states or other territories of the United States, that may now be exercised by the governor of Arkansas in that state, and he may issue requisition upon governors, of states and other territories for persons who have committed offenses in the Indian Territory, and who have taken refuge in such states or territories.” Ind. Ter. St. 1899, p. 13, § 41. And the act under which Judge Thomas was appointed gave him all the power conferred upon the other judges, and was to hold court wherever assigned by order of the court of appeals. We cannot agree with appellant's counsel as to the power of congress in the territories. Under article 4, § 3, of the constitution of the United States, it is provided that “the congress shall have power to dispose of, and make all needful rules and regulations respecting the territory or other property belonging to the United States; and nothing in this constitution shall be so construed as to prejudice any claims of the United States, or of any particular state.”
We are of the opinion that the judgment of the court below was correct, and it is therefore affirmed.