(concurring).
There are but two questions controlling in this proceeding, and the answer to which holds the solution to the case. The first is, is the petitioner a fugitive from justice from California? The second, did the conduct of the California authorities effect a waiver of California’s right to extradite the petitioner? As pointed out in the majority opinion, there is no pleading and proof of California law before us, and in the absence thereof, the law of that state will be presumed to be the same as the law of Oklahoma. It is fundamental that we do not take judicial notice of the laws of a foreign state. In answer to the first question, the law of Oklahoma is controlling. Thereon, it has been held in Oklahoma in Ex parte Hamilton, 41 Okl.Cr. 322, 273 P. 286:
“Where a convicted prisoner in another state is there paroled, and voluntarily comes into this state, and thereafter his parole is revoked by the proper authorities of the former state, the prisoner then has the status of an escaped convict, and is a fugitive from justice from the former state, and if apprehended in this state, he may upon requisition be rendered to that state. His status is not changed by the fact that he came into this state after being paroled with the consent of the authorities of the former state.”
To the same effect see Ex parte Foster, 60 Okl.Cr. 50, 61 P.2d 37. In Ex parte Jackson, 97 Okl.Cr. 289, 262 P.2d 722, 723, the petitioner asserted he left Arizona by compulsion, and therefore was not a fugitive from justice. To this contention, this court said:
“In 13 A.L.R. 415 the rule is thus stated:
“ ‘The decided weight of authority is to the effect that the mission, motive, or -purpose inducing a person accused of being a fugitive from justice to leave the demanding state is immaterial, and that the courts of any asylum state will not consider such elements in an extradition proceeding, but will be satisfied by a simple showing that, having within the demanding state committed that which by its laws constitutes a crime, when the alleged fugitive is sought to be subjected to its criminal process to answer for his offense, he has voluntarily left its jurisdiction and is found within the asylum state.’
“To the same effect is 22 Am.Jur., Extradition, Sec. 23.
“Decisions from most of the states in the Union, including Oklahoma, are cited in support of this majority rule. In 35 C.J.S., Extradition § 10, p. 327, it is said:
“ ‘The mode or manner of a person’s departure from the state generally does not affect his status as a fugitive from justice; so the fact that a person’s departure was involuntary or under legal compulsion will not, under most authorities, preclude his extradition as a fugitive from justice’.
“Oklahoma first became committed to the majority rule in the early case of Ex parte Williams, 10 Okl.Cr. 344, 136 P. 597, 51 L.R.A.,N.S., 668, in which it was held:
“ ‘(a) To be a fugitive from justice under the laws of the United States, it is not necessary that the person *1106charged with haying left the state in which the crime was alleged to have been committed should have done so for the purpose of avoiding prosecution anticipated or begun, but simply that, having committed a crime within the state, he leaves such state, and, when he is sought to be subjected to its criminal process to answer for his offense, he is found within the territory of another state.’
“Later the majority rule was followed in the case of Ex parte Hamilton, 41 Okl.Cr. 322, 273 P. 286 (supra); Ex parte Baker, 33 Okl.Cr. 413, 244 P. 459; In re Gundy, 30 Okl.Cr. 390, 236 P. 440. In Ex parte Hamilton, supra, the petitioner was paroled from the State of New Mexico under the specific condition that he proceed at once to Oklahoma City, Oklahoma, and there remain for at least twelve months. Later and during the twelve months, the parole was revoked with no reason disclosed for such revocation. In the body of the opinion it is stated * *:
“ ‘It is generally held that a fugitive from justice within the meaning of the extradition law is one who having committed a crime leaves the state and is found in another state. It is not necessary that he should have left the state in which the crime was alleged to have been committed for the purpose of avoiding a prosecution anticipated or begun, but simply that, having within a state committed a crime against its laws, he has left its jurisdiction, and is found within the territory of another state when he is sought to be subjected to its criminal process to answer for his offense. 25 C.J. p. 258, § 13, note 66; 11 R.C.L. p. 730, § 23.’
“In the case of Cockburn v. Willman, 301 Mo. 575, 257 S.W. 458, 460, it is stated:
“ ‘The second contention is that the petitioner is not a fugitive from justice within the meaning of the federal Constitution and statutes. Judicial literature is replete with discussions upon this subject. The weight of these opinions is to the effect that the moving purpose which may have induced one accused of crime to leave the state in which it was committed will not be considered by the courts of the state in which he is found in determining an extradition proceeding; but that the sufficiency of the demand for his return will be determined by a formal showing that he is charged with the commission of a crime within the demanding state and that when sought to be subjected to criminal process to answer therefor, he is found to have voluntarily left that state and is then in thek asylum state from which it is sought to extradite him.’
“Since the passage of the Uniform Criminal Extradition Law in 1949 by the state of Oklahoma, 22 O.S.1951, §§ 1141.1 to 1141.30, this court has held:
“ ‘Where extradition papers required by statute are in proper form and extradition warrant has been issued by the Governor, and the extradition is not based upon the provisions of Sec. 6 of Uniform Criminal Extradition Act, 22 O.S. 1951 § 1141.6, the only evidence admissible on habeas corpus to secure release from custody under the warrant of extradition is such as may tend to prove that defendant was not in demanding state at time crime was allegedly committed, or that the person sought to be extradited is not actually the person charged with the crime in the demanding state.’ Ex parte Scott, 91 Okl.Cr. 345, 219 P.2d 249; Ex parte Deere, 93 Okl.Cr. 291, 227 P.2d 420, at page 421; Ex parte Beam, 96 Okl.Cr. 207, 252 P.2d 179.
“There are some authorities in support of the minority rule. The case of In re Whittington, 34 Cal.App. 344, 167 P. 404, cited by petitioner, followed that rule, although in the later case of In re Thurber, 37 Cal.App. 571, 174 P. *1107112, the court, without citing the Whittington case, adopted the majority rule followed in Oklahoma and in a majority of the other states. Oklahoma, however, as shown hy the above decisions is committed to the majority rule.
“The entire matter of interstate extradition of fugitives from justice is based upon the Constitution of the United States and the federal statutes, and the rule followed by the United States Supreme Court as to who is a fugitive from justice is in conformity to the majority rule herein stated. See Roberts v. Reilly, 116 U.S. 80, 6 S.Ct. 291, 29 L.Ed. 544; Appleyard v. State of Massachusetts, 203 U.S. 222, 27 S.Ct. 122, 51 L.Ed. 161, 7 Ann.Cas. 1073; Drew v. Thaw, 235 U.S. 432, 35 S.Ct. 137, 59 L.Ed. 302.”
See also, Ex parte Ayers, 90 Okl.Cr. 255, 213 P.2d 297, 298, wherein we held:
“To be a ‘fugitive from justice’ within meaning of federal law dealing with extradition, it is sufficient that person legally charged in demanding state with commission of crime within such state when sought to be subjected to its criminal process for the offense, has left its jurisdiction and is found within the jurisdiction of asylum state upon whose executive requisition is made.
“When a prosecution is initiated and pursued to judgment of conviction, accused before expiration of his sentence is still ‘charged’ within the meaning of the provisions of the United States Constitution and laws relating to extradition.”
In the light of the foregoing authorities, the record establishes the petitioner as a fugitive from justice from the State of California and therefore the subject of extradition.
But, the petitioner contends that the conduct of Officer Jensen in stating in relation to Oklahoma’s request for the petitioner for robbery: “Well, they want you worse than we do and we are going to release you to them”, amounted to a waiver of California’s right of extradition. This action on the part of parole officer Jensen,, if it actually happened, was not binding on. the petitioner. Petitioner was not deprived, of any of his rights by Jensen’s conduct, but to the contrary, petitioner had the right to resist extradition, which he did not do. Instead of opposing extradition, within the week thereafter, he signed a waiver thereof to Oklahoma and the officers ora January 7, started to Oklahoma with him. Hence, it is apparent the petitioner’s removal to Oklahoma was not by reason of Jensen’s conduct, but by reason of petitioner’s own voluntary assent. The only way Jensen’s action could be construed as. a waiver would be by a showing of express-delegated authority to bind the Adult Authority of California, or by its acquiescence in his statement for so long a time as to effect a waiver of its right to the petitioner. The Adult Authority revoked the petitioner’s parole six days later. Regardless of parole agent Jensen’s conduct, it was neither sanctioned nor acquiesced in by the California Adult Authority. Instead of being charged with delay in acting, the majority is of the opinion that the matter was handled expeditiously. The thought occurs to the writer that to hold Jensen’s conduct binding on the California Adult Authority, without a showing of express authorization, would be to ascribe to Jensen, as agent, as great authority as that possessed by his principal. Under the law of Oklahoma, a parole agent without express authority so to do, cannot bind the Pardon and Parole Board. If such not be the case in California, why have the Adult Authority? To hold otherwise would be contrary to public policy. It is thus clear to this writer that California not only did nothing to indicate a waiver, but took affirmative action indicative to the contrary. In light of the foregoing authorities and reasons, I must concur the writ should be denied and petitioner delivered to California.
We do not feel that we are overruling old Oklahoma landmark cases in the field of extradition, but are adopting the court’s *1108opinions to the restricted meaning created by the Oklahoma Legislature’s adoption of the Uniform Extradition Act. 22 O.S. 1951 §§ 1141.1 to 1141.30.