The opinion
ON MOTION FOR REHEARING.
BEAUCHAMP, Judge.
Appellant has filed a motion for rehearing in this cause presenting that the record offered in the court below and excluded by the trial court shows conclusively that on the date alleged in the indictment by which it is sought to remove relator from the State of Texas for trial in the State of Arizona that he was not in arrears in the support of his children, but had paid in advance and up to about the 12th day of December, *517 which was two or three months after the date alleged in the indictment. If the record so shows and if relator has not been in the State of Arizona since that time he is not a fugitive and cannot be extradited. (Ex parte Hatfield, 235 S. W. 591 .) It is then a proper inquiry to determine from the record before us and from the excluded testimony, if it is admissible, whether or not relator was in arrears in his payment when he was last in the state. He testifies that he was there on March 28, 1939, and on April 12, 1939, he obtained an order from the Arizona court modifying the judgment theretofore held by his wife for the support of his children, and that at said time he owed a balance of $125.00 for the support of said minors, his language being:
“Yes, I was $125.00 behind at that time; yes, that was in April, 1939, when I was up there in regard to getting this court order modified. No, since that time I have not paid any $125.00, no sir.”
Contradicting this his own testimony appellant presents a bill of exception showing that he offered in evidence a number of instruments, among which was a certified copy of decree from the Arizona court showing a modification of the former judgment, a settlement and also the conveyance of property to satisfy the accrued indebtedness and payment for a period of time far enough in advance to pay his obligations beyond the time alleged in the indictment as above stated. The trial court excluded such instruments and to this ruling exception was taken.
It is the State’s contention that these instruments were not admissible in evidence because they were not properly certified as required by 28 U. S. C. A. 687 and by the laws of the State of Texas. This position must be sustained. (Robinson v. State, 148 S. W. (2d) 205 .) So holding, it becomes unnecessary to discuss the fault of the bill of exception bringing these questions before the court. However, the evidence, if considered, is not sufficiently explicit to sepersede the positive statement made by relator and which he did not modify or explain.
We are then left with the record as made by the relator’s own testimony and that of his wife, which in the consideration of the one question before us as to whether or not he is a fugitive from the State of Arizona, is wholly insufficient to sustain his contentions. If it were within the power and the *518 duty of a Texas court to determine the issue of guilt or innocence, the testimony presented could be weighed and considered quite differently, but the power of a Texas court is limited to the question of determining whether or not the relator is a fugitive and in so determining it our courts do not have the power to adjudicate the question of guilt. (Ex parte Hatfield, supra). This question, we think, has been thoroughly settled by decisions of our own courts. It is in line with the holding on the subject in other states and does not call for an extended discussion at this time.
The motion for rehearing is overruled.