When a writ of habeas corpus has been issued to inquire into the legality of an arrest on a warrant of extradition, what is the function of the hearing judge and the legal effect of his findings of fact?
C. S., 2234, defines the duty of the judge before whom the writ is returnable, and also, prescribes the scope of the hearing. He shall immediately (a) “examine into the facts contained in such return and into the cause of the confinement;
(b) “and if issue be taken upon the material facts, ... or other facts are alleged to show that the imprisonment ... is illegal”;
(c) “the . . . judge shall proceed in a summary way to hear the allegations and proofs on both sides;
(d) “and ... do what to justice appertains, in delivering, bailing or remanding such party.”
The statutory words “if issue be taken upon the material facts . . . the judge shall proceed in a summary way to hear the allegations and proofs of both sides,” preclude the idea that such hearing shall be perfunctory and merely formal. This Court said In re Veasey, 196 N. C., 662, 146 S. E., 599: “One who is sought to be extradicted may contest the validity of the extradition proceedings on writ of habeas corpus by showing (1) that he is not charged with a crime in the demanding state, or (2) that he is not a fugitive from the justice of the demanding-state. Both of these are jurisdictional matters, and, if the accused can establish either, he is entitled to be discharged from custody. The first *366is a question of law to be determined upon the face of the requisition and the indictment or affidavit accompanying it, the law of the demanding state, of course, furnishing the test; while the second is a question of fact which, when controverted, may be established by evidence like any other disputed fact.” See, also, In re Hubbard, 201 N. C., 472. All the authorities, including the decisions of this State are to the effect that it is not proper to bear evidence upon the guilt or innocence of the prisoner or to take into consideration the merits of the case or of the defense to be interposed at the trial or of an alibi, or of other matters involving the ultimate issue of guilt. Nevertheless, these are general observations and legal assertions. If the petitioner was not in the demanding state when the crime was committed, certainly be could not be guilty of a crime, and hence it is obvious that the question of presence in the demanding state at the time of the crime involves in a certain sense guilt or innocence, alibi or other defenses that may be interposed at the trial. It is apprehended, however, that the courts mean to say that the bald question of presence in the demanding state at the time of the commission of the alleged crime was the primary question to be considered.
In arriving at a conclusion as to whether the prisoner should be remanded or discharged, a difficult question stands at the threshold: What quantum of proof shall the bearing judge require in order to determine the ultimate issue of fact as to whether the prisoner was in the demanding state at the time of the crime ? It has been asserted that if the evidence is conflicting upon the subject of presence in the demanding state at the time the crime was committed that the prisoner is not entitled to be discharged, but should be remanded for trial. It has also been said that if there is some evidence of the presence of the prisoner in the demanding state at the time the offense was committed, a discharge is not warranted or justified. See Munsey v. Clough, 196 U. S., 364, 49 L. Ed., 515; Hyatt v. New York, 188 U. S., 691, 47 L. Ed., 657. That is to say, that if there is more than a scintilla of evidence in favor of the demanding state, the judge should discharge the writ of habeas corpus and remand the prisoner. Hence, if any sort of reckless or fanciful testimony should be offered tending to show the presence of a prisoner in the demanding state, the accused might thereupon offer the testimony of a thousand disinterested persons who knew absolutely that be was not in the demanding state at the time, nevertheless the courts would be powerless to afford protection. Manifestly under such interpretation the beneficent powers of habeas corpus would be set at naught and the “bearing” provided by law would be no more than a hollow form or fleeting shadow. Nevertheless the demanding state is vitally interested in *367the outcome. It has the right to try and punish offenders against its peace and dignity, committed within its jurisdiction. Consequently a difficult task is imposed upon a judge in undertaking to decide the important question involved.
The statute of this State, C. S., 2234, enjoins the judge “to do what to justice appertains in delivering, bailing or remanding such party.” Obviously the statute does not undertake to limit the judge in arriving at his conclusions, but apparently commits the result to the exercise of his sound legal discretion. The nearest approach to a positive declaration of this Court upon the quantum of proof is contained in S. v. Herndon, 107 N. C., 934, 12 S. E., 268. Upon the facts appearing in the record, the Court said: “If the judge, upon the investigation of the evidence on a petition for habeas corpus, adjudges that there is or is not probable cause, and admits or refuses to admit to bail, no appeal or certiorari lies, either in favor of the state or the petitioner. . . . The quantum of evidence and the number of witnesses to be examined must necessarily be left also to the sound discretion of the-judge who hears the writ, and his action in that regard cannot be reviewed.”
In the case at bar a controversy of fact arose between the contending parties, that is the demanding state and the prisoner, as to whether the prisoner was in the demanding state at the time the alleged offense was committed. The writ of habeas corpus was created and fashioned for the express purpose of determining such controverted fact. The statute and public policy require that such fact be determined in a summary manner. Doubtless in given cases different minds would work out diverse conclusions, but after all it is perhaps wise that the determination of the ultimate fact should be lodged in the sound legal discretion of an impartial judge, commissioned by the law of the land and the inherent sense of the responsibility of his high office “to do what to justice appertains.” He hears the witnesses and observes their mental leanings or bias toward the question involved. He senses the atmosphere of the case. Moreover it would doubtless be a dangerous experiment to undertake by a judicial decree of an appellate court to prescribe a legal straitjacket for such matters.
Exercising the power delegated by statute and supported in principle by the decisions of this State, the hearing judge found certain facts and set them forth in his judgment. The last inquiry in the solution of the appeal is: What is the effect of the findings of fact set out in the judgment? Whatever may be the variable conclusions reached by other courts, that inquiry is settled in North Carolina. The law is thus stated: “The findings of fact made by the judge of the Superior Court, found as they are upon competent evidence, are also conclusive on us, *368and we must therefore base our judgment upon bis findings, wbicb amply sustain bis order.” In re Hamilton, 182 N. C., 44, 108 S. E., 385. See, also, Clegg v. Clegg, 186 N. C., 28, 118 S. E., 824; In re Hayes, 200 N. C., 133, 156 S. E., 791.
It is true that the judge made certain remarks appearing in the record, tending to show that be was undertaking to view the case from the standpoint of guilt or innocence or the ultimate probability of acquittal upon trial in the demanding state. If these remarks bad been incorporated into the judgment itself, a wholly different factual situation would be presented upon the appeal, but the judge expressly declared in the judgment as signed that he found as a fact “that he (prisoner) is not a fugitive from justice from the State of South Carolina, and was not present at the time of the commission of the alleged crime at Greenville, South Carolina.” The judgment as written and signed speaks the mind of the judge and his conclusion upon the matters in issue. Therefore, the judgment as rendered must stand.
Affirmed.