It is well settled by authorities in this and other jurisdictions that where a person who has been arrested and is held in custody under an extradition warrant issued by the Governor of the State in which he was arrested, applies to a judge of said State for a writ of habeas corpus, on the ground that his arrest and detention is unlawful, and at the hearing of his application, admits that he is the person named in the warrant, and that he is properly charged with an extraditable crime in the demanding state, the only question to be determined by the judge is whether at the date of his arrest he was a fugitive from the justice of the demanding state. If the evidence shows that he was in the demanding state at the date on which it is alleged that the crime was committed, and the judge'so finds, there is no error in an order denying his petition for a writ of habeas corpus on the ground, solely, as in the instant case, that the petitioner was not a fugitive from justice, at the date of his arrest. See In re Bailey, 203 N. C., 362, 166 S. E., 165. In accordance with this principle, the order in the instant case must be

Affirmed.

dissenting: The uncontroverted, and, therefore, admitted facts disclose that on 5 July, 1933, the respondent was tried by a court of competent jurisdiction of Virginia for the desertion and abandonment of his wife, in an action entitled Commonwealth v. Fred J. Guerin. The-judgment rendered declares that “the court . . . being of opinion that the defendant has not deserted and abandoned his wife, doth order1 that he be required to furnish a suitable home of his choice for his said *827wife and support her to the best of his ability and station in life in his said home,” etc. After said judgment was rendered the defendant immediately left Virginia, on the same day and returned to his home in North Carolina. It is neither alleged nor contended that he has ever been in the State of Virginia since said date and since his acquittal.

Consequently, the question of law presented by the record is as follows: Does an acquittal of a defendant by a court of competent jurisdiction of the demanding state, of the very crime charged in an extradition proceeding and on the very day the crime is alleged therein to have been committed; constitute fleeing the justice or evading the process and punishment of the demanding state? The problem may be otherwise stated as follows: Is presence in the courts of the demanding state on the date the crime is committed to answer and defend the very crime alleged, resulting in acquittal; “such presence in the demanding state” as to warrant extradition for the identical crime upon a subsequent warrant?

The decision in this case rests exclusively upon the formula “presence in the demanding state at the time the crime is alleged to have been committed.” While all of us doubtless worship the formulas of the law and bow down before them, nevertheless, it seems to me that such formulas ought to yield to admitted facts and qualifying circumstances; otherwise we ducktrack words without reference to practical situations.