And, if the evidence be clear and convincing that the accused was not personally in the demanding state at the time of the commission of the offense charged, and has committed no prior overt act therein indicative of an intent to commit the crime, or which can be construed as a step in the furtherance of the crime afterwards consummated, he should be discharged.See, South Carolina v. Bailey, 289 U.S. 412, 421-22, 53 S.Ct. 667, 671, 77 L.Ed. 1292, 1297 (1933); Watson v. Montgomery, 431 F.2d 1083 (5th Cir. 1970); Walton v. State, 98 Idaho 442, 566 P.2d 765 (1977) Sawyer v. State, 382 A.2d 1039 (Me. 1978); Application of DeGina, 94 N.J. Super. 267, 228 A.2d 74 (1967); 31 Am.Jur.2d Extradition § 66 (1967). Under the rule that the accused must carry the burden of proving his absence from the demanding state at the time the alleged offense was committed by clear and convincing evidence, it is uniformly held that where the evidence is merely conflicting as to the defendant's fugitive status, he is not entitled to discharge in habeas corpus after being apprehended pursuant to an extradition proceeding E.g., South Carolina v. Bailey, supra; Application of DeGina, supra.

Upon presentation of the governor's warrant, there results a mandatory rebuttable presumption that the accused was present in the demanding state. Walker v. State, 315 A.2d 855, 856 (Me. 1974); In re DeGina, 96 N.J.Super. 267, 228 A.2d 74, 76 (1967). The burden then devolves to the petitioner to prove that he was without the demanding state at the time in question.

See 257 A.2d 771-772. In the trial of that issue, the Governor's Warrant raises the presumption of the presence in the demanding State at the time of the crime of the person named in the papers; and thereupon it devolves upon the accused to overcome that presumption and to carry the burden of showing, by clear and convincing proof, that he was in fact not there. See In re DeGina, 94 N.J.Super. 267, 228 A.2d 74 (1967). For the reasons stated, the judgment below must be reversed and the cause remanded for determination, under the guide-lines herein prescribed, of the question of whether the petitioner was in New Jersey on the date of the offense.

The burden was on Dressel to show by clear and convincing evidence that he was absent from Texas at the time of the crime charged. Wigchert v. Lockhart, 114 Colo. 485, 166 P.2d 988; In Re DeGina, 94 N.J. Super 267, 228 A.2d 74; So. Carolina v. Bailey, 289 U.S. 412, 53 S.Ct. 667, 77 L.Ed. 1292. As the trier of fact it was the trial court's duty to determine the credibility of the witnesses and to resolve the conflict in the evidence. This it did and we will not disturb the finding.

I am not however opposed to permitting the trier of fact to draw an adverse inference from the failure of a parent to testify or otherwise present evidence of noninvolvement. See In re Degina, 94 N.J. Super. 267, 274 (App.Div.), certif. den. 49 N.J. 368 (1967); Camden Safe Deposit Trust Co. v. Green, 124 N.J. Eq. 221, 226 (Ch. 1938).

, In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970); State v. Green, supra; State v. Frey, 194 N.J. Super. 326 (App.Div. 1984); see also State v. Breakiron, 210 N.J. Super. 442 (App.Div. 1986), we conclude that there was evidentiary sufficiency in the absence of other evidence to permit a determination based upon legitimate inferences to sustain the conviction. Cf. In re Degina, 94 N.J. Super. 267, 273 (App.Div. 1967), certif. den. 49 N.J. 368 (1967) (". . . initial presumption of identity of person arising from the identity of name") (habeas corpus proceeding).

Bail was denied based on the determination that there was no provision in the law for the same; that the Uniform Extradition Act and the interstate rendition clause of U.S. Const., Art. IV, § 2, par. 2, required immediate surrender to the demanding state; that if bail were to be set it should be done by the courts of Nevada — the state whose laws defendant had allegedly offended. In re DeGina, 94 N.J. Super. 267 (App.Div. 1967). Lucas filed his notice of appeal with the Appellate Division and sought from that court the setting of bail pending his appeal.

8 Wigmore on Evidence ( rev. 1961), § 2272(e), p. 439, and cases cited, f.n. 14; and see In re Sterling-Harris Ford, Inc., 315 F.2d 277 (7 Cir. 1963); Kaufman v. Hurwitz, 176 F.2d 210 (4 Cir. 1949). We recently recognized and applied the rule in a habeas corpus case, In re Degina, 94 N.J. Super. 267, 274 ( App. Div. 1967), certification denied 49 N.J. 368 (1967), following State of South Carolina v. Bailey, 289 U.S. 412, 53 S.Ct. 667, 77 L.Ed. 1292 (1933). The rule permitting adverse inferences from the failure of a party in a civil cause to testify as to matters in issue within his personal knowledge is commonplace and elementary in our jurisprudence.