NO. 88-512 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1989 

IN RE THE MATTER OF 

GARY HENRLCHS, 

Petitioner and Appellant. 

APPEAL FROM: District Court of the Thirteenth Judicial District, 

In and for the County of Yellowstone, 

The Honorable Robert W. Holmstrom, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Terry L. Seiffert, Bill.ings, Montana 

For Respondent: 

Marc Racicot, Attorney General, Helena, Montana 

Clay Smith, Asst. ~ttorney General-, Helena, Montana 

Harold F. Hanser, Yellowstone County Attorney, 

Billings, Montana 

Curtis L. Reldoven, Deputy Yellovrstone County Attorney, 

~n illings , Montana 

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Submitted on Briefs: March 9, 1989 

Decided: April 12, 1989 
Mr. Justice L. C. Gulbrandson delivered the Opinion of the 

Court. 

Petitioner appeals the denial of his writ of habeas 

corpus. The Thirteenth Judicial District Court, Yellowstone 

County, held that the misspelling of petitioner's name on the 

complaint and arrest warrant issued in Idaho did not render 

the extradition proceedings in Montana defective. 

Consequently, the court denied Gary Henrichs' petition for 

release. We affirm. 

Henrichs presents the following issue upon appeal: 

Did the District Court err in holding that the 

petitioner Gary Henrichs had the burden of proving beyond a 

reasonable doubt that he was not the individual named "Gary 

Hendricks" in the charging documents accompanying the 

Governor of Idaho's request for extradition? 

On February 12, 1988, the Governor of Idaho requested 

the Governor of Montana to extradite "Gary Clark Henrichs 

a/k/a Gary Henrichs." This extradition request was 

accompanied by a requisition application, filed by the 

prosecuting attorney of Canyon County, Idaho, requesting the 

apprehension and rendition of Gary Henrichs for his crime of 

grand theft in Idaho. A copy of the criminal complaint 

charging "Gary Hendricks" with grand theft, together with a 

copy of the arrest warrant issued under the same name and 

describing the suspect as a 5 ' 11" tall, 220 pound male, born 

June 14, 1941, also accompanied the extradition request. In 

response, the Governor of Montana on February 25, 1988 issued 

a warrant for the arrest of "Gary Clark Henrichs a/k/a Gary 

Henrichs." 

On March 8, 1988, Henrichs filed a petition for writ of 

habeas corpus. He alleged that his arrest and detention in 

Montana was unlawful because the charging documents 
accompanying the extradition request named "Gary Hendricks" 

rather than "Gary Henrichs." Henrichs contended the State of 

Montana failed to meet its burden of proof which required the 

State to show that he was the same man as the "Hendricks" 

charged. 

On August 16, 1988, the District Court denied Henrichs' 

writ. The court held that the complaint and arrest warrant 

had inadvertently misspelled Henrichs' name as "Hendricks." 

Such a technical error did not affect the presumption, 

arising upon issuance of the Montana Governor's warrant, that 

the accused and the wanted fugitive were the same. Because 

of this pres.umption, petitioner had the burden of 

establishing beyond a reasonable doubt that he was not the 

"Gary Hendricks" charged in the criminal complaint issued in 

Idaho which gave rise to the extradition request. The court 

held that Henrichs failed to meet this burden, and thus it 

denied his petition for release. Henrichs appealed this 

denial of his petition. 

This Court has previously held that when a foreign 

state requests the extradition of a fugitive, the Governor of 

the asylum state has the duty of determining whether the 

person demanded has been substantially charged with a crime 

and whether the person is indeed a fugitive. State ex rel. 

Hart v. District Court (1971), 157 Mont. 287, 291, 485 P.2d 

698, 701, citing from Bruzaud v. Matthews (D.C. Cir. 1953), 

207 F.2d 25; see also S 46-30-211(2), MCA. A determination 

of whether the person demanded has been substantially charged 

with a crime only requires inquiry into: 

. . . a whether the extradition 

documents on their face are in order; (b) 

whether the petitioner has been charged 

with a crime in the demanding state; 

[and] (c) whether the petitioner is the 

person named in the request for 

extradition . . . 
Michigan v. Doran 11978), 439 U.S. 282, 289, 99 S.Ct. 530, 

535, 58 L.Ed.2d 521, 527; see also In re Petition of 

Blackburn (1985), 215 Mont. 440, 701 P.2d 715. 

Petitioner does not dispute that he is the person named 

in the Idaho Governor ' s extradition request. Henrichs does 

contend, however, that he was not charged with a crime in 

Idaho. He argues that the extradition documents, accompanied 

by the complaint and arrest warrant charging a "Gary 

Hendricks" with grand theft, were not in order on their face. 

Petitioner's contentions are without merit. This Court 

has previously held that a person may not be released on a 

writ of habeas corpus because of a technical defect if the 

defect does not substantially affect his rights. Petition of 

Eldiwitw (1969), 153 Mont. 468, 471, 457 P.2d 909, 910. The 

issuance of the criminal complaint and arrest warrant for 

"Gary Hendricks," rather than for "Gary Henrichs," appears to 

be just such a technical defect. The arrest warrant which 

accompanied the extradition request described Gary Hendricks 

as a 5'11" tall, 220 pound male, born June 14, 1941. This 

description matches the description on the driver's license 

of Gary Henrichs. The correct description of Henrichs in the 

arrest warrant indicates the petitioner was substantially 

charged with a crime in Idaho. 

The doctrine of idem sonans further supports the 

District Court's determination that the petitioner was 

substantially charged with a crime in Idaho. According to 

this doctrine, two names spelled differently will be regarded 

as the same if they "sound alike in their pronunciation." 

Dilworth v. Leach (Colo. 1973), 515 P.2d 1130, 1131. In 

Dilworth, the petitioner, O'Dell Dilworth, was named as 

"Ode11 Dillworth" in documents (other than the charging 

documents) accompanying the demanding governor's extradition 

request. The Colorado court held that omission of the 
apostrophe and addition of an "1" in the surname was not 

sufficient to mislead the petitioner. - Id. 

The facts in the present case differ slightly from 

those in Dilworth. The extradition request by Idaho 

correctly named "Henrichs," while the accompanying charging 

documents named "Hendricks." The applicability of the 

doctrine, however, does not hinge on where the misspelling 

occurred. Rather, it depends on the extent of the 

misspelling. See, e.g., Edmonds v. Andrews (Colo. 1985), 696 

P.2d 325 (upholding the extradition of Wayne Edmonds, Jr. 

even though the extradition papers requested "Wayne 

Edmunds"); see generally State v. Davila (F1a.Dist.Ct.A~~. 

1985) , 481 So. 2d 486 (upholding the extradition of Enrique 

Davila even though the extradition papers requested "Enrique 

Davila Torres a/k/a 'Kiki,'" this extradition request was 

accompanied by a photograph of the requested fugitive). 

Courts will not apply the doctrine when the extradition 

papers cite an entirely different name than that name charged 

without any proof that the two named persons are in fact the 

same individual. See, e.g., People v. Cheek (111. 1982), 442 

N.E.2d 877 (holding the extradition of Michael Asbell was 

invalid because no proof was offered to show that he and the 

charged "Frederick 1,eroy Cheek, Jr." were the same 

individual); Lee Gim Bor 77. Ferrari (1st Cir. 1932), 55 F.?d 

86 (invalidating the extradition of Lee Gim Ror because no 

proof was offered to show that he and the indicted "John Doe" 

were one and the same). 

We hold as did the Colorado court in Dilworth, that the 

extent of the discrepancy between the named Idaho fugitive 

and the accused petitioner are minimal. The charging 

documents simply added a "d" and substituted a "k" for an 

"h". The District Court thus did not abuse its discretion 

when it applied the doctrine of idem sonans, determined under 
this doctrine that petitioner had been substantially charged 

with a crime in Idaho, and upheld the validity of the Montana 

Governor's warrant. 

Once the Governor of Montana has issued a warrant for 

the arrest and extradition of an accused, a presumption 

arises that the accused is the demanded fugitive. This 

presumption is "sufficient to justify his arrest, detention 

and delivery to the demanding state." State ex rel. Hart, 

485 P.2d at 702, citing Soloman v. Warden (Md. 1969), 260 

A.2d 68. The burden of proof then shifts to the accused to 

prove beyond a reasonable doubt that he is not the fugitive 

charged in the demanding state. Henrichs failed to introduce 

any evidence showing he was not the "Hendricks" charged in 

Idaho with grand theft. We therefore hold that the District 

Court was correct in denying Henrichs' writ of habeas corpus. 

Affirmed. /' 

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We concur: .