(Syllabus.)

1. Habeas Corpus — Question Whether Person Detained on Extradition Warrant Is Substantially Charged with Crime. The question as to whether the person demanded and detained on an extradition warrant is substantially charged with a crime is a question of law, which on the face of the papers is open to inquiry on writ of habeas corpus.

2. Extradition — Necessary That Person Sought Be Charged with Crime. Unless the affidavit, complaint, or information charges the person sought with the commission of a crime, it is fatally defective, and a warrant for his extradition is unauthorized.

Original petition by Mike Deal for a writ of habeas corpus. Writ allowed.

G.W. Cornell, for petitioner.

Bond, Hatcher & Bond, for respondent.

Page 123

BESSEY, P.J. In the petition for writ of habeas corpus it is averred that Mike Deal is illegally restrained of his liberty by the sheriff of Washita county. The cause of restraint as alleged is by virtue of an executive warrant issued by the Governor of this state on requisition from the Governor of Tennessee.

Upon presentation of the petition, the writ issued, returnable October 28, 1926, at which time respondent appeared in court with the petitioner. On behalf of the petitioner it was alleged that the affidavit, as shown by a certified copy of the same, was insufficient to charge a crime against the petitioner, and that the order of his arrest and detention was therefore illegal and void.

At the conclusion of the argument it was the opinion of the court that the affidavit upon which the request of the Governor of Tennessee for the requisition warrant from the Governor of the state of Oklahoma was wholly insufficient to charge an offense within the meaning of the statute of the United States, relating to requisitions (18 USCA §§ 651-668), in that said affidavit failed to state the name of the owner of the property, the character of the property, or the date of its alleged removal from the state of Tennessee, or facts sufficient to show that a crime had been committed or that the petitioner was a fugitive from justice.

For the reasons stated, it is adjudged and ordered that the writ be allowed, and the petitioner be discharged from custody.

DOYLE and EDWARDS, JJ., concur.