King v. Hawes

• Decision Date: 15 July 1978
• Docket Number: No. 48689,48689
• Citation: 224 Kan. 335,580 P.2d 1318
• Parties: Alonzo Victor KING, Appellant, v. Dan HAWES, Sheriff of Leavenworth County, Kansas, Appellee.
• Court: Kansas Supreme Court

Page 1318

580 P.2d 1318

224 Kan. 335

Alonzo Victor KING, Appellant, v. Dan HAWES, Sheriff of Leavenworth County, Kansas, Appellee.

No. 48689.

Supreme Court of Kansas.

July 15, 1978.

Syllabus by the Court

1. To require and justify the rendition of an accused by the asylum state to the demanding state it must be shown that he is (1) the individual named in the writ of extradition; (2) charged, in accordance with statutory authority, with a crime in the demanding state; and (3) a fugitive, which is to say that the accused was in the demanding state when the alleged crime was committed.

2. When an accused challenges extradition in a habeas corpus proceeding brought under the Uniform Criminal Extradition Act, the governor's warrant issued in the extradition proceedings is presumed valid and regular in all respects, thus casting the burden of proof upon the petitioner to overcome the Prima facie case made by the governor's warrant.

3. If the difference in name on the indictment and extradition papers is significant, its only effect is to shift the burden of proof as to identity to the state.

4. In a habeas corpus proceeding, the strict rules of evidence are not applicable to test the legality of arrest and extradition.

Charles M. Tuley, of May & Tuley, of Atchison, argued the cause and was on the brief for appellant.

Curt T. Schneider, Atty. Gen., and Patrick J. Reardon, County Atty., were on the brief for appellee.

SCHROEDER, Chief Justice:

This is an appeal from an order of the Leavenworth district court dissolving a writ of habeas corpus filed by Alonzo Victor King, a/k/a Gun Doe (petitioner-appellant). The petitioner, a former inmate of the federal penitentiary at Leavenworth, was released pursuant to extradition papers to the custody of the sheriff seeking his extradition to the State of South Dakota.

The petitioner challenges the admission of certain evidence at his extradition hearing and contends he was not substantially charged with committing a crime under the laws of South Dakota.

Briefly summarized, on August 30, 1973, an indictment was issued by a Custer County, South Dakota grand jury charging "Gun Doe" with the crimes of riot and assault with a dangerous weapon. The petitioner was subsequently released from the United States Penitentiary at Leavenworth, Kansas, on January 5, 1976, and was arrested by the Leavenworth County Sheriff, Dan Hawes, the same day.

On January 15, 1976, the petitioner filed an application for a writ of habeas corpus which was denied by the trial court on January 21, 1976. Six days later the attorney general of the State of South Dakota sent a request for extradition of "Gun Doe" a/k/a Alonzo King to the governor of the State of Kansas, and a governor's warrant of arrest was then issued on February 25, 1976.

The petitioner filed a second application for a writ of habeas corpus on March 12, 1976, and a hearing was held on the application on March 26, 1976. The trial court found the warrant issued by the governor of Kansas was valid, and on April 1, 1976, judgment was entered dissolving the writ of habeas corpus. Thereafter, the petitioner duly perfected this appeal.

On appeal the petitioner challenges whether his identity was sufficiently established. He contends there is no proof he is the "Gun Doe" named in the South Dakota requisition warrant or the Kansas rendition warrant.

To require and justify the rendition of an accused by the asylum state to the demanding state it must be shown that he is (1) the individual named in the writ of extradition; (2) charged, in accordance with statutory authority, with a crime in the demanding state; and (3) a fugitive, which is to say that the accused was in the demanding state when the alleged crime was committed. (Hyatt v. Corkran, 188 U.S. 691, 709, 23 S.Ct. 456, 47 L.Ed. 657 (1903); Price v. Pitchess, 556 F.2d 926 (9th Cir. 1977), Cert. denied, 434 U.S. 965, 98 S.Ct. 504, 54 L.Ed.2d 451; United States ex rel. Tyler v. Henderson, 453 F.2d 790, 793 (5th Cir. 1971); United States v. Flood, 374 F.2d 554, 556 (2d Cir. 1967); Johnson v. Matthews, 86 U.S.App.D.C. 376, 378, 182 F.2d 677, 679 (1950), Cert. denied, 340 U.S. 828, 71 S.Ct. 65, 95 L.Ed. 608 (1950); Person v. Morrow, 108 F.2d 838 (10th Cir. 1940); Freedman v. United States, 437 F.Supp. 1252 (N.D.Ga.1977); Thomas v. Levi, 422 F.Supp. 1027, 1031, n. 12 (E.D.Pa.1976); Garrison v. Smith, 413 F.Supp. 747, 752 (N.D.Miss.1976); Davis v. Behagen, 321 F.Supp. 1216, 1217 (S.D.N.Y.1970); In re Dean, 254 A.2d 242 (Del.Sup.1969); State v. Devine, 342 So.2d 103 (Fla.App.1977); In re Extradition of Leonard, 27 Ill.App.3d 870, 327 [224 Kan. 337] N.E.2d 480 (1975); Poulin v. Bonenfant, 251 A.2d 436, 438 (Me.1969); State ex rel. Wagner v. Hedman, 292 Minn. 358, 195 N.W.2d 420 (1972); and Salvail v. Sharkey, 108 R.I. 63, 66, 271 A.2d 814 (1970).)

Of course, when an accused challenges extradition in a habeas corpus proceeding brought under the Uniform Criminal Extradition Act, the governor's warrant issued in the extradition proceedings is presumed valid and regular in all respects, thus casting the burden of proof upon the petitioner to overcome the Prima facie case made by the governor's warrant. (Greenbaum v. Darr, 220 Kan. 525, 527, 552 P.2d 993 (1976); McCullough v. Darr, 219 Kan. 477, 480-81, 548 P.2d 1245 (1976); Dean v. Sheriff of Leavenworth County,217 Kan. 669, 538 P.2d 725 (1975); See also Wilbanks v. State, 224 Kan. 66, 81, 579 P.2d 132 (1978).) Here the petitioner contends the South Dakota indictment charging "Gun Doe" and the other extradition papers charging "Alonzo Victor King a/k/a Gun Doe" are significantly different. Other jurisdictions have held if the difference in name on the indictment and extradition papers is significant, its only effect is to shift the burden of proof as to identity to the state. (See State ex rel. Myers v. Allen, 83 Fla. 655, 92 So. 155 (1922); In re Extradition of Leonard, supra, 27 Ill.App.3d at 874, 327 N.E.2d 480; The People v. Meyering, 358 Ill. 589, 193 N.E. 495 (1934); Poulin v. Bonenfant, supra at 440; Salvail v. Sharkey, supra, 108 R.I. at 67, 271 A.2d 814; and Annot., 93 A.L.R.2d 912, 922-24 (1964).)

Therefore, the habeas corpus proceeding must be examined in order to determine whether identity was established. The petitioner contends the introduction of a package of materials containing an affidavit and photographs...