NO. 88-512
IN THE SUPREME COURT OF THE STATEOF MONTANA 1989

IN RE THEMATTER OF GARY HENRLCHS, Petitionerand Appellant.

APPEAL FROM: District Court of the Thirteenth Judicial District, In and for the County of Yellowstone, The HonorableRobert

### W. Holmstrom,Judgepresiding.

COUNSEL OF RECORD:
ForAppellant: 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, DeputyYellovrstone County Attorney,
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# - Submitted onBriefs: March 9,1989 Decided: April 12, 1989Mr. 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 themisspelling ofpetitioner'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 individualnamed "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 ofMontana 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 apetition forwrit of habeas corpus. He alleged that his arrest and detention in Montana was unlawful because the charging documentsaccompanying the extradition request named "Gary Hendricks" rather than "Gary Henrichs." Henrichs contended the State of Montana failed tomeet its burden ofproof which required the State to show that he was the same man as the "Hendricks" charged. OnAugust 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'swarrant, that the accused and the wanted fugitivewere 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 ofhispetition. This Court has previously held that when a foreign state requests the extraditionof 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), 157Mont. 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 ofwhether theperson demanded hasbeen 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. Petitionerdoes not dispute thathe 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 orderon their face. Petitioner's contentionsare withoutmerit. 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 "GaryHendricks," rather than for "GaryHenrichs," 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 theapostrophe 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 extraditionpapers 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 citean entirely differentname 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 (1stCir. 1932), 55 F.?d 86 (invalidatingthe extradition of Lee Gim Ror because no proofwas offered to show thathe and the indicted "JohnDoe"
were one and the same). We hold as did the Colorado court inDilworth,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 underthis doctrine that petitioner had been substantially charged with a crime in Idaho,and upheld thevalidity 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 Courtwas correct in denying Henrichs'writ of habeas corpus. Affirmed. /'

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We concur:


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