This is an original action in this court for a writ of habeas corpus. The petitioner alleges that he is illegally detained by Frank Fox, sheriff of Pottawatomie county, and that a requisition from the Governor of the state of Kansas has been honored by the Governor of the state of Oklahoma, and that said sheriff is about to deliver petitioner to George F. Speed, agent for the state of Kansas, to be conveyed to the state of Kansas, upon a prosecution pending in the courts there, charging petitioner with the crime of desertion of his wife and children in that state. Petitioner *Page 18 alleges that the separation between himself and his wife, the complaining witness, occurred in the state of Oklahoma, that the petitioner and his said wife and their children were at that time residing in the county of Kiowa, state of Oklahoma, and that he is not a fugitive from the state of Kansas. A rule to show cause was issued upon said petition, and a hearing had, at which hearing it was made to appear by the undisputed evidence that, just prior to the separation of petitioner and his wife, they resided as husband and wife in Kiowa county, this state; that a separation took place, and after some time the wife, the complaining witness, removed to the state of Kansas and initiated this prosecution. The petitioner is not a fugitive, within the meaning of the extradition laws.
Habeas corpus is an appropriate proceeding to determine whether an accused is a fugitive, within the meaning of the extradition law, and subject to be taken from the jurisdiction of this state to the state whose laws he is charged with violating. Having determined that he is not a fugitive, it follows that the writ should be awarded and the petitioner discharged.
DOYLE, P.J., and DAVENPORT, J., concur.