The judgment of the court below denying the relief sought and remanding the petitioner to the custody of the sheriff was error.

SUBMITTED MAY 9, 1955 — DECIDED JUNE 14, 1955.

Thurman West brought this petition for habeas corpus against F. C. Graham, Sheriff of Dade County, alleging that he was being illegally held by said sheriff. The petition alleges that petitioner is being held under and by virtue of a warrant issued by the Governor of Georgia in which petitioner is charged with being a fugitive from justice from the State of Virginia. It is alleged that this document is not a legal warrant because, among other things, the sheriff did not have in his possession any legal document which shows that the Governor of Virginia has certified as authentic a copy of any indictment found or an affidavit made before a magistrate of the State of Virginia charging the petitioner with a crime as required by Code, § 3182, Tit. 18 U.S.C.A., and because there was no written demand by the Governor of Virginia upon the Governor of Georgia as required by said Code section.

The case proceeded to trial and upon the hearing there was introduced in evidence by respondent a warrant issued by the Governor of Georgia. Respondent, who was the only witness, testified, among other things, that he had in his possession, other than the Governor's warrant, a warrant sworn out by himself charging the petitioner with being a fugitive from justice from the State of Virginia, a document from the State of Virginia appointing an agent to receive the petitioner, and a warrant from Virginia charging the petitioner with being a fugitive from justice from the State of Virginia. He then testified: "I do not have any other documents in my possession and no other documents were sent from Virginia to Georgia. These are the only documents that there are concerning this case." These documents were then introduced in evidence by the petitioner without objection. No other evidence was presented in the case. The court below found against the petitioner and he was remanded to the custody of the sheriff. To this judgment, the petitioner excepted.

WYATT, Presiding Justice.

Tit. 18 U.S.C.A. § 3182 provides as follows: "Whenever the executive authority of any State or Territory demands any person as a fugitive from justice of the executive authority of any State, District, or Territory to which such person has fled, and produces a copy of an indictment found or an affidavit made before a magistrate of any State or Territory, charging the person demanded with having committed treason, felony, or other crime, certified as authentic by the governor or chief magistrate of the State or Territory from whence the person so charged has fled, the executive authority of the State, District, or Territory to which such person has fled shall cause him to be arrested . . . and notify the executive authority making such demand. . ." Code (Ann. Supp.) § 44-404 provides as follows: "No demand for the extradition of a person charged with crime . . . shall be recognized by the Governor unless in writing . . . accompanied by a copy of an indictment found or by information supported by affidavit in the State having jurisdiction of the crime, or by a copy of an affidavit made before a magistrate there, . . . or by a copy of a judgment of conviction or of a sentence imposed in execution thereof, together with a statement by the executive authority of the demanding State that the person claimed has escaped from confinement or has broken the terms of his bail, probation or parole. The indictment, information, or affidavit made before the magistrate must substantially charge the person demanded with having committed a crime under the law of that State, and the copy of indictment, information, affidavit, judgment of conviction or sentence must be authenticated by the executive authority making the demand. . ."

In the instant case there is no demand, written or otherwise, by the Governor of Virginia upon the Governor of Georgia for delivery of the petitioner as a fugitive from justice. Nor is there any copy of an indictment, information, affidavit, judgment of conviction, or sentence authenticated by the Governor of Virginia. We are aware of the rule to the effect that the warrant of the Governor of Georgia will be presumed to be legal until the contrary appears, and that once the warrant is in evidence, the burden is upon the petitioner to show that and wherein the law has not been complied with. See Broyles v. Mount, 197 Ga. 659 ( 30 S.E.2d 48); King v. Mount, 196 Ga. 461 ( 26 S.E.2d 419). In the instant case, after the warrant had been introduced in evidence, the respondent testified that he had in his possession certain other documents. He stated that they were a warrant sworn out by himself, a warrant sworn out in Virginia, and a document appointing an agent to receive the petitioner. He then stated: "I do not have any other documents in my possession and no other documents were sent from Virginia to Georgia. These are the only documents that there are concerning this case." The documents were then introduced in evidence by the petitioner. This evidence was not contradicted in any way by anyone at the hearing. Therefore there is positive evidence which is uncontradicted to the effect that there was no formal demand for delivery of the petitioner and no copy of an indictment, information, affidavit, judgment or sentence authenticated by the Governor of Virginia as required under the provisions of law above set out. It therefore appears that petitioner has carried the burden of proof which was required of him and has shown that the warrant under which he is being detained is illegal. It follows the restraint of the petitioner is illegal and the judgment of the court below denying the relief sought and remanding the petitioner to the custody of the sheriff was error.

Judgment reversed. All the Justices concur except Candler, J., who dissents.