Opinion
No. 38261.
May 26, 1965.
Appeal from the 12th Judicial District Court, Walker County, Reginald Bracewell, J.
Robert B. Billings, Dallas, for appellant.
Leon B. Douglas, State's Atty., Austin, for the State.
This is an appeal from an order entered in a habeas corpus proceeding remanding relator to custody for extradition to the State of Kansas to answer a charge "by information' of Burglary and Larceny.
There is no evidence in the record indicating that the offense of "Burglary and Larceny' may be prosecuted in Kansas upon an information. In absence of proof that the law of Kansas in this regard differs from that of Texas, it is assumed that prosecution for such offense upon an information is not authorized by Kansas law. Ex parte Doyal, 167 Tex.Crim. R., 318 S.W.2d 642; Ex parte Goodwin, Tex.Cr.App., 384 S.W.2d 874; Ex parte Gardner, 159 Tex.Crim. R., 264 S.W.2d 125; Ex parte Cooper, 163 Tex.Crim. R., 295 S.W.2d 906; on second appeal, Tax.Cr.App., 308 S.W.2d 22. Furthermore, the information is not supported by affidavit or complaint and the supporting affidavit of the prosecuting attorney is upon information and belief only. See Ex parte Logan, 151 Tex.Crim. R., 205 S.W.2d 994; Ex parte Kinsloe, 134 Tex.Crim. R., 115 S.W.2d 955, and cases therein cited.
We further observe that the hearing was before a "special judge' and the record fails to show his authority to hold the hearing or to enter the order from which this appeal was taken. See Arts. 1886, 1891, 1934 Vernon's Ann.Civ.St.; Art. 556 Vernon's Ann.C.C.P.; 33 Tex.Jur.2d 469, Sec. 95.
The order remanding relator to custody for extradition is reversed.