—holding that a defendant cannot be extradited as a "fugitive from justice" if "in fact he was not within the [requisition] state at the time the [criminal] act is said to have been committed

But one who was not in the demanding state at the time of the crime cannot be a fugitive from justice.

Under this section, it was long held that the accused must be shown to have been actually and not merely constructively present within the demanding state at the time the offense was committed.

—it was contended that a person may be guilty of a crime within a state even though not personally present there; but the court said: "This raises the question whether the relator could have been a fugitive from justice when it is conceded he was not in the state of Tennessee at the time of the commission of those acts for which he had been indicted, assuming that

Having been charged with a crime in one State, it is sufficient that an alleged fugitive simply be found in another State.

"When it is conceded, or when it is so conclusively proved, that no question can be made, that the person was not within the demanding state when the crime is said to have been committed, and his arrest is sought on the ground only of a constructive presence at that time, in the demanding state, then the court will discharge the defendant.

"The subsequent presence for one day (under the circumstances stated above) of the relator in the state of Tennessee, eight days after the alleged commission of the act, did not, when he left the state, render him a fugitive from justice within the meaning of the statute. There is no evidence or claim that he then committed any act which brought him within the criminal law …

The issuing of the warrant by him, with or without a recital therein that the person demanded is a fugitive from justice, must be regarded as sufficient to justify the removal, until the presumption in favor of the legality and regularity of the warrant is overthrown by contrary proof in a legal proceeding to review the action of the governor.

The inquiry whether the appellant is a fugitive from justice is one of fact, to be resolved by the chief executive of the State of Oklahoma to whom the demand for extradition is made, and his judgment thereon is not subject to judicial impeachment by habeas corpus unless it conclusively appears that the person sought to be extradited could not be a fugitive from justice …

"In the case before us it is conceded that the relator was not in the state at the various times when it is alleged in the indictments the crimes were committed."