In Re the Habeas Corpus of Langley

NIX, Judge

(dissenting).

The record in this case reveals that the defendant was, on the 15th day of November, 1957, duly-tried and convicted for the crime of Robbery and sentenced to an indeterminate sentence of 5 years to life in the San Quentin, California, state penitentiary, located at San Francisco, California. On the 8th day of May, 1951, his term was refixed at five years .and five years C S W P T and fixed at hi years C C W P T and granted last 2 years and 7 months on parole. He was paroled by the Adult Authority, Department of Correction, of the State of California on the 6th day of June, 1952. The conditional parole provided among other things that “This parole is granted to you and accepted by you,

“subject to the following conditions and with the knowledge that the adult authority has the power, at any time, in case of violation of the conditions of parole to cause your detention and or return to a state prison.”

Other provisions restricted defendant from leaving county of residence without permission of parole officer, nor was parolee allowed to marry. The petitioner in violation of his parole, left the state of California without the consent of his parole officer and came to Oklahoma, committed a crime and returned to California. He got married on December 28th, 1952, and was arrested by the FBI on December 31, on grounds of flight to avoid prosecution.

The testimony reveals that after the petitioner was incarcerated in the San Francisco City jail by the FBI agents, the following conversation took place:

“Q. After the authorities, the FBI picked you up on January 31st, December 31, I believe you said, what did they do with you then? A. I asked him if I would have to stand trial for ■ flight to avoid prosecution,' he told me, ‘No, it was a matter of formality that he arrested me,’ and put me in the county jail, the parole -officer wanted me also, then I had an extradition hearing, Oklahoma wanted me for robbery.”

The petitioner further testified as follows

“Q. While you were there in the city jail, did anybody come to visit you? A. My wife and parole officer.
“Q. What was the parole officer’s name? A. Jensen.
“Q. How many times did the parole officer visit you there? A. Twice.
“Q. Do you recall the date of the first visit? A. No, it was right after I was arrested he came down and placed a hold order on me for the parole officer.”

Further:

“Q. Did he talk to you about your escapade? A. Yes, he asked me about it. I told him I’d rather not discuss it with him, and he said, ‘Well, you know you violated your parole?’
“Q. Violated it for what? A. For getting married.
“Q. What else? A. Leaving the state.
“Q. Was he aware of the charges he had placed against you? A. They didn’t have any charges.
“Q. I mean from Oklahoma. A. Yes, he said, ‘What about this charge in Oklahoma they want you for robbery,’ and I said, ‘I’d rather not discuss it,’ and I asked him what’s going to happen here, and he said, ‘Well, they want you worse than we do and we are going to release you to them’, to Oklahoma.
“Q. Your parole officer said that? A. Yes, that was on the second trip.”

It is well to remember that on the arresting date, December 31st, petitioner was interviewed by county officers McGuire and Crewshank who asked defendant to sign waiver of extradition. Defendant testified *1109he first refused, but after they agreed to let him visit with his wife for about an hour, he went before the court and signed the waiver of extradition. The Oklahoma officers were given custody of the petitioner at the San Francisco jail on January 7, 1953, by county officers McGuire and Crewshank, and he was returned to Oklahoma to answer charges of robbery. Three days after his return to Oklahoma, the adult authority of California issued an order revoking petitioner’s parole. The defendant was tried in this state, convicted, and given a sentence of 10 years. The petitioner, with good time and time for donating blood allowed, completed his sentence in Oklahoma, on the 12th day of February, 1958, and was released into the custody of the Sheriff of Pittsburg County, Oklahoma, was confined in jail to await the arrival of the officers from the agent of the Adult Authority of California with a warrant of arrest issued by said authority to take petitioner into custody and return him to California as a parole violator to serve out his unexpired term. Upon the arrival of said agent, R. B. Travers, he arrested petitioner under the warrant of the Governors of California and Oklahoma. The petitioner filed this writ of Habeas Corpus contending that the officials of 'California had with knowledge that the petitioner had violated the terms of his parole, released and surrendered custody of this petitioner to the .authorities of Oklahoma without any terms ■or conditions whatsoever with reference to his return to California after prosecution in Oklahoma for the purpose of completing his unexpired sentence in California, and that the voluntary surrender to Oklahoma of petitioner by said authority of California, while petitioner was under an unexpired sentence of and to California, constitutes a waiver of jurisdiction and the right to demand the return of petitioner to California as a fugitive from justice. The petition relies upon and cites numerous cases of this state to support his contentions. As cited by the petition this court said in Ex parte Youstler, 40 Okl.Cr. 273, .268 P. 323, 324:

“It may be conceded that, where a person is convicted in this state and pending his appeal, while at liberty on the supersedeas bond, is delivered by the Governor under requisition to a sister state, such delivery amounts to a waiver of the jurisdiction of this state over his person, and when, under such requisition, he is taken out of the state, he is not a fugitive, and this state would not have the right thereafter to extradite him from another state as a fugitive.”
“Since the rendering of petitioner to the authorities of the state of Missouri was a waiver of the right of this state to return the petitioner to this state after his release there, he could have successfully resisted any attempt by the authorities of this state to return him here”

This rule of law is well established in this state and is clearly approved in the following cases: Ex parte Middaugh, 40 Okl.Cr. 280, 268 P. 321; Adams v. Waters, 94 Okl. Cr. 428, 237 P.2d 914; Ex parte Guy, 41 Okl.Cr. 1, 269 P. 782; Ex parte Hart, 95 Okl.Cr. 269, 244 P.2d 859; Samet v. McLeod, Okl.Cr., 291 P.2d 836; Traxler v. State of Oklahoma, 96 Okl.Cr. 231, 251 P.2d 815; Jarrett v. State of Oklahoma, 49 Okl.Cr. 162, 292 P. 888.

This court can point with legal pride to its continued consistency in this phase of the law. It has never held contrary to the rule adopted in the foregoing cases. Extensive research reveals that some other jurisdictions have decided the question both ways and there seems to be considerable confusion in those jurisdictions as to the application of the rule. The majority opinion in this case, if adopted, will by the stroke of a pen, destroy or weaken the decisions of learned jurists of this court since statehood and on tiiis particular question of law, leave the court in an utter state of confusion.

One of the very early cases deciding this question, In re Hess, 4897, 5 Kan.App. 763, 767, 48 P. 596, 597, the defendant' Hess and *1110Orr were charged in Woodward 'County, Oklahoma Territory, with the crime of Grand Larceny, arrested, bound over to the District Court, indicted by the 'Grand Jury, 18th of December 1896, and were released on bail. Thereafter on the 11th day of November, 1896, they were charged by information in Clark County, Kansas, with the crime of Grand Larceny. Afterwards, application was made to the Governor of the State of Kansas for a requisition upon the Governor of Oklahoma Territory. The Governor of Oklahoma Territory issued his warrant for the arrest and return to Kansas of the petitioners. The defendants were arrested and taken to the State of Kansas and confined in jail. A writ of Habeas Corpus was brought by petitioners contending that the Oklahoma Court had jurisdiction, not Kansas. The court said:

“There is no question that on December 18, 1896, the Woodward county district court had jurisdiction of the petitioners. Neither is there any question that on said date the territory of Oklahoma waived its jurisdiction by the act of its governor in delivering up the petitioners to the agent of the state of Kansas upon the requisiton of the governor thereof. By such delivery and surrender the territory of Oklahoma can no longer require their appearance before her tribunals; and all obligations which she has taken to secure that result thereupon, at once, ipso facto, lose their binding effect, and no action can be maintained upon the bonds given to secure their appearance before the Woodward county district court.”

Listed as authority were the following citations: Taylor v. Taintor, 16 Wale 366, 7 Am. & Eng., Enc.Law 643, § 19.

The rule in this case which arose in our own back yard with the Honorable Temple Houston representing the Oklahoma Territory has been consistently followed by this court during the last half century. Since California is the demanding state in the instant case it is well to note that the land mark on this question was adopted by California in the case of In re Whittington, 34 Cal.App. 344, 167 P. 404, where the court said:

“One is not a fugitive from justice from the state of Texas so as to be subject to extradition thereto, where, having been arrested in that state for an offense there committed, he was with permission of its authorities taken in process under extradition to the state of California, there to answer to a charge of having committed a crime, though the latter charge was later dismissed.”

In this connection the majority opinion by Judge Powell refers to the late case, Applications of Fedder, 1956, 143 Cal. App.2d 103, 299 P.2d 881, which criticizes the above case and states it was cited In re Marzec, 25 Cal.2d 794, 154 P.2d 873, and In re McBride, 101 Cal.App. 251, 281 P. 651, and that the case is clearly contrary to the weight of authority. A careful study of the Fedder case will reveal it is not contrary to the contention of the petitioner here, but in that case the author relied upon the Uniform Extradition Act to deny the writ, which is not applicable if the demanding state has waived jurisdiction. Such is contended here. However, the author of that decision, which is ofttimes the case, carefully avoided references to other cases by the California court adopting the Whittington case. Ex parte Drake, Cal.App., 233 P.2d 931. The Court said :

“A person in custody for an offense in one state may be surrendered to another state which requests his extradition, and such surrender operates as a waiver of jurisdiction of state over person of prisoner and prisoner cannot thereafter be considered a fugitive from justice from surrendering state so as to permit it to requisition him on termination of proceedings against him in second state.”

The state of California also upheld the Whittington case in Ex parte Kimler, Cal. App., 217 P.2d 640. This rule has been *1111upheld in many other jurisdictions. People ex rel. Barrett v. Bartley, 383 Ill. 437, 50 N.E.2d 517, 147 A.L.R. 935; State v. Saunders, 288 Mo. 640, 232 S.W. 973; Cozart v. Wolf, 185 Ind. 505, 112 N.E. 241; Carpenter v. Lord, 88 Or. 128, 171 P. 577, L.R.A.1918D, 674; State ex rel. Falconer v. Eberstein, 105 Neb. 833, 182 N.W. 500; Ex parte Bell, Ohio Com.PL, 75 N.E.2d 186, 188. In the Bell case, supra, the court had the following to say about the right or power of a governor in such cases:

“In Re Opinion of the Justices to the Governor and Council, 201 Mass. 609, 89 N.E. 174, 24 L.R.A.,N.S., 799, the court held that the governor has no authority to interfere with the execution of a sentence in a criminal case other than by pardoning the offender. * * *
“‘(The governor’s) disability, so to interfere lies deeper than in the absence of an empowering statute. The powers of the government of Massachusetts are divided among three departments — the legislative, the executive and the judicial — no one of which shall ever exercise the powers of either of the others. * * *
“ ‘It is within the province of the judicial department to try persons who are charged with crime and to impose punishment upon them if they are found guilty. Except by a pardon of the convict, neither of the other departments can nullify or set aside a sentence of the judicial department which is in process of execution under a proper warrant from the court.
“ ‘A warrant from the Governor, such as is supposed, unless it derives some peculiar power from the Constitution of the United States, would be of no effect against the warrant from the court under which the prisoner is held in execution of its judgment after conviction. * * *
“ ‘(The governor’s) power * * * is subordinate to the power of his own state, through its proper officers, to hold its prisoners, convicted of crime, until their expiation under its laws has become complete.’
“The general rule is adequately stated in 22 American Jurisprudence, page 256, section 19: ‘In general under the constitution of the United States and the laws of Congress enacted thereunder, it is the imperative duty of the governor of the asylum state to deliver up a fugitive from justice upon receiving a requisition and papers in proper form from the executive of the demanding state; and, while the obvious purpose of such provision is to prevent an offender against the justice of one state from gaining an asylum and immunity from punishment by fleeing to another state, this does not create a preference in the enforcement of the demanding state. Accordingly it is well settled that an asylum state has the right to pumsh an accused fugitive for crimes committed within its jurisdiction before it becomes obligated to honor a requisition for extradition by a sister state.111

I am thoroughly convinced that since this case is being decided in Oklahoma, our law would apply and it is unnecessary to pillage the books to seek law from other jurisdictions. However, in view of these numerous decisions and others not cited, I am unable to accept Judge Powell’s and Judge Brett’s “Arguendo” that this line of cases is against the great weight of authority.

I agree that there has been a tendency by some courts in recent decisions to construe the Uniform Criminal Extradition Act and the Interstate Parole Compact a barrier to the application of the long established rule stated in the cases heretofore cited. However, this is, in the opinion of your writer, an erroneous construction of those Acts. Under the Uniform Criminal Extradition Act, the person sought to be extradited must be substantially charged with a crime against the demanding state and a fugitive from justice. How could *1112it be said that a person over whom the demanding state had voluntarily waived jurisdiction is a fugitive from justice? The rule in these numerous decisions make it clear that the defendant is not subject to extradition where there has been a waiver of jurisdiction. It cannot be said that once that jurisdiction is waived it can be restored by virtue of the Uniform Extradition Act, but to the contrary, where there is a waiver of jurisdiction, the petitioner in no wise would be considered a fugitive from justice, therefore, could not be extradited under the provisions of the Act. The Interstate Parole Compact likewise, is not in conflict with this line of cases because for a parolee to come within the confines of that Act he must be paroled to a sister state under its specific provisions, which provides for the necessary consent and agreed supervision of the parole authorities of the receiving state. And, of course, where the parolee was released to a receiving state, under the rules and regulations of the Interstate Parole Act, there would be no waiver of jurisdiction and the petitioner would be subject to return under its provisions.

The recent cases cited by Judge Powell, such as Brewer v. Goff; Application of Fedder, the Moulthrape case, rely upon the Uniform Extradition Act to supersede “Waiver of Jurisdiction.” However, I cannot agree that where one commits a crime against a state, is apprehended, convicted, and confined, can be voluntarily released without conditions or qualifications, or extradited to another state before the expiration of his punishment, and then be returned to that state as a fugitive from justice. A state has the inherent right and duty to apprehend and punish those who violate her laws and to keep them in custody until the punishment is completely satisfied, but to release him to another state without condition, agreement, or qualifications prior to the expiration of his punishment waives the right to return prisoner. It was said in People ex rel. Barrett v. Bartley, supra, 50 N.E.2d at page 521:

“That a prisoner cannot be handed from one jurisdiction to another for the purpose of trial, conviction and service of a new sentence, before being returned to the asylum State for service of the unexpired sentence, without violating his constitutional rights.”

In the instant case there is but one question, and that is: ‘Did California waive jurisdiction of this petitioner?’ If so, the right to return the petitioner by extradition was also waived. If there was no waiver of jurisdiction, the writ should be denied and petitioner returned to California. Had the defendant been extradited from California in the beginning, there would be no doubt about that state having waived jurisdiction. However, in the instant case the petitioner waived extradition with the full knowledge of his parole officer who advised petitioner that California was going to release him to Oklahoma. It is the contention of the petitioner that the action of the authorities in California, from the time of petitioner’s arrest until his delivery to the Oklahoma authorities, constituted a waiver of jurisdiction as to preclude his return.

Judges Powell and Brett, in the majority opinion, concludes that the parole officer and city and county officials would not bind the Governor nor the Adult Authority as to constitute waiver, and that there was no evidence to show they had knowledge of petitioner’s arrest. With this I do not agree. The evidence is uncontradicted that the parole officer visited the petitioner twice and advised him that California was going to release him to Oklahoma. The petitioner went before a magistrate and signed a waiver of extradition. It therefore must be presumed that in the absence of any evidence to the contrary that the chief executive of said state had full knowledge of petitioner’s arrest and confinement. Under the laws of this state a waiver of jurisdiction must be forthwith forwarded to the chief executive. 22 O.S.A. § 1141.25. Under the Uniform Extradition Act, the Cali*1113fornia Penal Code, § 1555.1, provides the same, as follows:

“Any person arrested in this State charged with having committed a crime in another state * * * may waive the issuance and service of the Governor’s warrant provided for in this chapter and all other procedure incidental to extradition proceedings, by subscribing in the presence of a magistrate within this State a writing which states that he consents to return to the demanding State; provided, however, that before such waiver shall be subscribed by such person, the magistrate shall inform him of his rights to require the issuance and service of a warrant of extradition as provided in this chapter.
"If such waiver is executed, it shall forthwith he forzvarded to the office of the Governor of this State and filed therein. The magistrate shall direct the officer having such person in custody to deliver such person forthwith to the duly authorized agent of the demanding State, and shall deliver to such agent a copy of such waiver
“The evidence shows this petitioner was lawfully arrested by the Federal Bureau of Investigation on a warrant •or by request of the Oklahoma authorities for a crime committed in another (Okla.) state; that said Federal authorities were aware that this petitioner’s parole officer placed a ‘hold’ order ■on him, who had actual knowledge that this petitioner had violated his parole, and was also wanted by the Oklahoma •authorities; that said Federal authorities surrendered this petitioner’s custody to the said officials of California; and that he was taken from said city jail, and his custody surrendered there to the authorities of Oklahoma for the purpose of being transported to Oklahoma to answer for a crime, but that the said surrender of this petitioner to the Oklahoma authorities was not until, after having been granted, and having had, an extradition hearing before the proper public officials and the court and the members thereof. Section 1551.3 of the California Penal Code provides the duties to be performed by the proper officials upon such an arrest which is here set forth as follows: (22 O.S.A. § 1128.9)
“Immediately upon the arrest of the person charged, the magistrate must give notice thereof to the district attorney. The district attorney must immediately thereafter give notice to the executive authorities of the state, or to the prosecuting attorney, or presiding judge of the court of the city or county within the State having jurisdiction of the offense, to the end that a demand may be made for the arrest and surrender of the person charged.”

If we presume that the officers and authorities of California complied with the law it would be hollow mockery to say the Governor and the authorities did not have knowledge of petitioners incarceration in the San Francisco jail. Under the authorities, we are to assume just that. This court said in Galbert v. State, Okl.Cr., 278 P.2d 245, 246:

“There is a presumption that officers perform their duties in the manner prescribed by law and where it is contended that there is noncompliance with certain statutory provisions, it is incumbent upon the one making such assertion to introduce evidence to support his contention.”

Also supporting this rule see Rawls v. U. S., 10 Cir., 166 F.2d 532; Lewis v. U. S., 279 U.S. 63, 49 S.Ct. 257, 73 L.Ed. 615.

Therefore, it must be presumed from the facts and all the evidence in the case at bar that the said lawful constituted public officials performed their duties lawfully and that they followed the applicable law as provided by Section 1555.1 of the Penal Code of California pertaining to the proper procedure for detaining, signing the waiver of extradition at the extradition hearing before the court and its members, and finally surrendering the custody of this *1114petitioner, at the lawful request and to the lawful authorities of Oklahoma for the purpose of returning him to Oklahoma to be here prosecuted for a crime committed by this petitioner.

If the above-quoted California statute was followed, and there is no evidence offered to the contrary, the contention of respondents that the action of the parole officer or city jailer or policeman in surrendering custody of this petitioner to the Oklahoma authorities is not binding upon the Governor of said state, so as to preclude him from extraditing this petitioner from Oklahoma as a fugitive, completely loses its force and becomes moot. For the reasons, that not only would the officials who surrendered custody of this petitioner to the Oklahoma authorities be acting upon the lawful order of the court, assuming of course, the court followed the applicable above-quoted statute which provides:

“The magistrate shall direct the officer having such person in custody to deliver such person forthwith to the duly authorized agent of the demanding State, and shall deliver to such agent a copy of such waiver

This petitioner contends that even absent any other applicable provision of said statute, the court’s order directed to the proper public official to surrender this petitioner to the Oklahoma authorities alone would be sufficient to bind the Governor of California, yet the said statute further provided, in addition, that :

“If such waiver is executed, it shall forthwith be forwarded to the office of the Governor of this State and filed therein.”

Could it here be said that the Governor could not be charged with notice of the action taken to extradite this petitioner to Oklahoma with a signed waiver of said extradition in his office? Or be bound by an order of a court of his state? Or be permitted to now act and nullify all which has heretofore transpired in his state, be it lawful or unlawful? To so hold would be to say that the Governor of California is not bound by any order of the courts of his state, actions of public officials, nor the laws of his state unless he chooses to be.

This petitioner at the time of his arrest by the FBI and placed in jail at San Francisco was a parolee from San Quentin State Prison, also situated at San Francisco. He was paroled on a conditional parole stating that the Adult Authority of California had the right to detain the parolee or return him to San Quentin at any time. The parole officer of the Adult Authority visited petitioner twice and placed a hold on him at the San Francisco jail. He was empowered with the authority to forthwith return the petitioner to the San Quentin prison in the same county. The California court said in People v. Denne, 141 Cal.App.2d 499, 297 P.2d 451, 457:

“From the statutes and cases last discussed, it is clear that the liberty accorded a parolee is partial and restricted. The granting of parole does not change his status as a prisoner. The parolee is not discharged but merely serves the remainder of his sentence outside rather than within the prison walls.”
“The parole system, as an enlightened penological technique, enables him to' pay his debt to society in a prison without bars. But he continues at all times to remain in penal custody, the same as the prisoner allowed the privilege of working on the prison’s ‘honor farm.’ Parole has simply pushed back the prison walls for him, allowing him wider mobility and greater personal' opportunity while serving his sentence. The additional liberty conferred on the parolee is the result of a decision of the Adult Authority an administrative agency which is a component part of the Department of Correction. Pen. Code §§ 5000-5003, 5075, 4810. Rules and regulations for the conduct of paroled convicts are rules and regulations for the control of prisoners. Matter of Stanton, supra. The en*1115forcement of these rules while the parolee is at large is the responsibility of the parole officer, a functionary of the administrative agency charged with supervising the conduct and charting the social progress of the parolee.”
“His supervision of the parolee is of necessity a close one, since it bears strong analogy to that of a jailer to his prisoner, though the area of operations has been vastly extended.”

The court further said:

“It is unnecessary for a parole officer to apply for a warrant to 'arrest’ a parolee who is already his prisoner and who is at all times in custodia legis. The administration of the parole system must be realistic, and not strangled in technical niceties. A parole officer’s physical apprehension of his prisoner for suspected violation of parole is not an ‘currest’ in the sense that a peace officer arrests a private individual suspected of a crime but a mere transfer of the subject from constructive ctts-tody into actual or physical custody.”

The parole officer in the instant case had full knowledge that the petitioner had violated his parole by leaving the state without permission, and committing a crime in another state, returning and getting married. The parole officer not only had the authority to transfer the petitioner across town to San Quentin but it was his duty to do so without delay for the reason petitioner was a known parole violator. It was said in the case of United States ex rel. Howard v. Ragen, D.C., 59 F. Supp. 374:

“The parole officers of state of Illinois in exercising right to reimprison parolee who has violated terms of his parole may not withhold such action indefinitely and exercise it at some remote time. Since exercise of such power at whim or caprice of parole officers would deprive parolee of ‘due process of law.’ ”
“It is obvious that such a power cannot coexist with due process of law because under it the liberty of a citizen is not dependent upon any process of law whatsoever, but only the whim or caprice of the parole board in its decision to imprison or not imprison a parole violator.”

In the case of Gilchrist v. Overlade, 233 Ind. 569, 122 N.E.2d 93, 100, in discussing the subject of revocation of paroles, Judges Emmert and Gilkinson state in their dissenting opinion:

“An act of delinquency (of Parolee) may be waived by failure to issue a warrant, or it may be waived after warrant is issued and the matter comes on for hearing. But after it is once waived there is nothing in the statute that authorizes a later revocation for the same act or omission. The whole statutory scheme shows that parole authorities should exercise diligence after being apprised of an act or omission which might be cause for revoking the parole.”

Under the testimony the petitioner remained in jail with the parole officers’ knowledge several days before the arrival of the Oklahoma officers and petitioner’s parole was not revoked until sufficient time had expired to transport him to Oklahoma. Six days after he was released to the Oklahoma officers for return to this state, his parole was revoked and a hold placed on petitioner after he was convicted here. It would be preposterous to assume this took place without the consent and without the permission of the California authorities.

Even if it could not be said that he consented and approved of the public officials’ performance of their duties, as aforesaid, he must be deemed to have waived the error, omission, neglect or failure, by failing so seasonably to object thereto. A similar question was raised in the case of Rawls v. United States, supra, in which the defendant had plead guilty in Federal Court and was sentenced therein while he was on parole from Oklahoma from a life sentence. He brought a writ of error coram *1116nobis to vacate the judgment and sentence of the Federal Court on the grounds that the Federal Court was without jurisdiction to convict and sentence him, because, at that time, he was under jurisdiction of Oklahoma under his life sentence previously imposed in the Oklahoma Court. The court there held in 166 F.2d on page 533:

* * * there is no showing in the record that Oklahoma objected to the Federal Court taking the defendant into custody, while on parole, for the purpose of trial in that Court. The record is entirely silent on that point. It has been held repeatedly that there is a presumption that officers will act lawfully and that in the absence of an affirmative showing of unlawful conduct on their part, the presumption is that the first sovereign consented to the exercise of such jurisdiction.”

The court further says in the body of its opinion, quoting:

“In Hebert v. State of Louisiana, 272 U.S. 312, 315, 47 S.Ct. 103, 104, 71 L.Ed. 270, 48 A.L.R. 1102, the Supreme Court said: ‘In the absence of any showing to the contrary, and there is none, it properly may be assumed that the United States acquiesced in their arrest and trial on the accusation under the state law, notwithstanding they were then on bail awaiting trial in the federal court on the indictment pending there.’ ”

In the absence of any showing that the State of Oklahoma objected to the exercise of the Federal Court’s jurisdiction over the defendant while he was still under its jurisdiction, although on parole, the presumption is that it consented to the United States taking appellant into custody, trying him and executing the judgment entered against him.

The testimony of the petitioner in this case is wholly unrefuted. It was stated by the attorney general during the course of the hearing before this court that affidavits would be presented to refute some of the testimony offered by the petitioner, however, 81 days have come and gone and as yet this court has not received affidavits or any other proof attempting to refute petitioner’s testimony. With the facilities of both the states of California and Oklahoma available to the respondent, it must appear logical to assume the facts presented by petitioner were true. From that testimony and the law applicable thereto I am of the opinion that the actions of the State of California, through its agents, was sufficient to constitute a waiver of jurisdiction over the petitioner, and by their actions took him from the category of a fugitive from justice and the writ should be granted.