(dissenting). I would affirm the order dismissing the writ of habeas corpus.
The requisition from the Governor of Oregon directed to the Governor of New York recited “ that george weiss [relator here] stands charged by indictment in the County of Multnomah of this State with the crime of Disseminating Obscene Matter which I certify to be a crime under the laws of this State, and that the accused while outside of the boundaries of this State, committed an act intentionally resulting in the said crime in this State and said requisition requested ■£ that the said fugitive be apprehended and delivered to * * * agents, who are authorized to receive and convey said fugitive to the State of Oregon, here to be dealt with according to law.” On consideration thereof, the Governor of this State issued his warrant properly reciting that the Governor of the State of Oregon had demanded of him that he arrest and deliver George Weiss to certain officers who were authorized to receive him and convey him back to Oregon, and further reciting that said demand was accompanied by a duly authenticated copy of the indictment charging the relator ££ with having committed a crime in the said State and having taken refuge in the State of New York and said warrant of the Governor of New York directed the arrest and delivery of the accused into the custody of officers authorized to receive and convey him back to Oregon pursuant to the requisition of the Governor of that State. Further, the Governor of this State duly issued an executive certificate stating that he ££ honored the requisition of the Governor of the State of Oregon for the surrender of George Weiss and have issued a warrant for his delivery to * * * the agents of said demanding State
The warrant and the certificate of the Governor of this State are in due form, and the recitals therein and in the papers upon which they were based, are to be taken as prima facie true. The court is bound to honor the warrant and give it full force and effect in the absence of support for relator’s claims of lack of jurisdiction. Where, as here, the proceedings for the extradition fully comply with statutory requirements and it appears, prima facie, that the nature of the alleged criminal acts of the relator is such that he is subject to extradition to the demanding .State, the burden rests upon him to show facts establishing that he is illegally held. (35 C. J. S., Extradition, § 16, subd. d, pp. 440-442; Ann. 81 A. L. R. 552, 562; Ann. 40 ALR 2d 1151, 1158; see, also, Munsey v. Clough, 196 U. S. 364; People ex rel. Draper v. Pinkerton, 77 N. Y. 245, 247; People ex rel. Jourdan v. Donohue, 84 N. Y. 438; People ex rel. Corkran v. Hyatt, 172 N. Y. 177; People ex rel. Samet v. Kennedy, 285 App. Div. 1116; *403People ex rel. Marshall v. Moore, 167 App. Div. 479; People ex rel. Arnold v. Hoy [Hopkins, J.], 32 Misc 2d 824; People ex rel. Kaufman v. O’Brien, 197 Misc. 1019; People ex rel. Tumminia v. Police Comr., 14 Misc 2d 755.) But, here, the relator presented no proof and jested merely on some unsupported argument of counsel.
Upon the return of the writ of habeas corpus, the People duly placed in evidence the requisition from the Governor of the State of Oregon, and the warrant and certificate of the Governor of the State of New York, together with all accompanying papers including a duly authenticated copy of the Oregon indictment. In addition, the People presented due proof of identity of the relator as the person named in the Oregon indictment and requisition. Furthermore, an officer, called by the People, testified to statements by the relator that he was “ the producer ” of the alleged obscene film which was the subject of the indictment; that he “ was producing a series ” of such pictures; that the said film was produced in New Jersey; that the film “ was produced in 35 millimeter for distribution throughout the United States ”; that he was the purchaser of “ 50% stocks ” of the corporation which distributed the film in Oregon to a subsidiary; and that he “ received 50% royalties from the film.”
Confronted with the due and prima facie establishment of the existence of the requisite jurisdictional facts (the relator did not claim that the papers were defective in any respect), .the relator offered no proofs. On closing argument, his counsel conceded that the relator “ produced this picture, and it so indicated on the title of the reel produced it for the American Film Distributing Corporation, a New York corporation with offices in New York for which he made arrangements to be paid 50 per cent of the net of that film.” Then counsel argued that the relator was not guilty of any crime committed in Oregon; that he was not a stockholder, officer or director of the American Film Distributing Corporation or of its subsidiary, Olympic International Films, which had distributed the film in the Western States; that he had no discretion in the operation of these companies; and that he had relinquished all control or dominion over the film.
Of course, arguments of counsel may not be accepted as proofs. Furthermore, the actual guilt or innocence of the accused of the crime charged in the foreign indictment is not the proper Subject of inquiry in a habeas corpus proceeding here; such issue must await trial in Oregon. (People ex rel. Jourdan v. Donohue, supra, p. 443; People ex rel. Edelstein v. Warden, 154 App. Div. 261.)
*404Section 834 of the Code of Criminal Procedure, authorizing extraditions of persons not present in the demanding State at time of commission of crime, provides: “ The governor of this state may also surrender, on demand of the executive authority of any other state, any person in this state charged in such other state in the manner provided in section eight hundred and thirty with committing an act in this state or in a third state, intentionally resulting in a crime in the state whose executive authority is making the demand, when the acts for which extradition is sought would be punishable by the laws of this state, if the consequences claimed to have resulted therefrom in the demanding state had taken effect in this state; and the provisions of this title, not otherwise inconsistent, shall apply to such cases, even though the accused was not in that state at the time of the commission of the crime, and has not fled therefrom”. (Emphasis added.)
Section 849, in the same title or chapter, states: “ The guilt or innocence of the accused as to the crime with which he is charged may not be inquired into by the governor, or in any proceeding after the demand for extradition accompanied by a charge of crime in legal form as above provided shall have been presented to the governor, except as it may be involved in identifying the person held as the person charged with the crime.”
Accordingly, in this proceeding we are not concerned with the question of whether or not the relator was in fact guilty of distributing his alleged obscene film in Oregon. It is improper to premise a determination here upon the grounds, as stated in the majority opinion, that the proof “ establishes only that the relator had a general purpose of national distribution, and not a specific intention to introduce the film into the demanding state ”; and that the facts “ do not establish the crime or any crime by relator in the demanding State. ’ ’
The sole issue here was “ whether the acts charged, namely, the distribution of such [film] would be punishable by the laws of New York, if such [film] or similar [films] were distributed in this State.” (People ex rel. Burtman v. Silberglitt, 15 Misc 2d 847, 849.) Special Term, after viewing the film, held that its distribution here would violate section 1141 of the Penal Law (which is the counterpart of the Oregon statute) and, on this basis, and in the absence of any proofs submitted by the relator, properly dismissed the writ.
Concededly, a person may commit a crime in a foreign State as a co-conspirator or vis-a-vis an agent. If his acts committed “ in this state or in a third state ”, intentionally resulting in the *405crime in the foreign State, are such, that they “ would be punishable by the laws of this state, if the consequences claimed to have resulted therefrom in the demanding state had taken effect in this state ”, he should not be accorded permanent, asylum in New York. (See Code Crim. Pro., § 834.)
Under the circumstances here, this court should fully honor the warrant of the Governor issued in the exercise of his discretion in furtherance of the purposes and provisions of the Uniform Criminal Extradition Act. (Code Crim Pro., § 827 et seq.) The determination of the majority, in disregard of such warrant, has the effect of improperly placing upon the People the burden of establishing here that the relator distributed the film in Oregon. The People were not bound to assemble and present the proofs bearing upon the issue of the relator’s guilt of the alleged Oregon crime. The relator should be remanded for a trial of such issue in Oregon.
Breitel, J. P., and .Stevens, J., concur with McNally, J.; Eager, J., dissents in opinion in which Babin, J., concurs.Order, entered on November 30, 1965, reversed, on the law, without costs or disbursements, the writ sustained and the relator-appellant discharged.