Newman v. Elrod, 78-789

• Decision Date: 18 May 1979
• Docket Number: No. 78-789,78-789
• Citation: 72 Ill.App.3d 616,391 N.E.2d 37,28 Ill.Dec. 838
• Parties: , 28 Ill.Dec. 838 Donald NEWMAN, Plaintiff-Appellant, v. Richard J. ELROD, Sheriff of Cook County, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 37

391 N.E.2d 37

72 Ill.App.3d 616, 28 Ill.Dec. 838

Donald NEWMAN, Plaintiff-Appellant, v. Richard J. ELROD, Sheriff of Cook County, Defendant-Appellee.

No. 78-789.

Appellate Court of Illinois, First District, Fifth Division.

May 18, 1979.

Rehearing Denied June 21, 1979.

Ellis B. Rosenzweig, Chicago, for plaintiff-appellant.

Bernard Carey, State's Atty., Chicago, for defendant-appellee; Lee T. Hettinger and Myra J. Brown, Asst. State's Attys., Chicago, of counsel.

SULLIVAN, Presiding Justice:

Plaintiff, a licensed Illinois attorney, appeals from a judgment of the circuit court denying his petition for a writ of habeas corpus and directing his extradition to New Jersey. It is contended here that (1) the trial court improperly found him to be the party charged by New Jersey authorities; (2) the acts set forth in the New Jersey documents do not constitute a crime in Illinois, thereby precluding extradition under section 6 of the Uniform Criminal Extradition Act (Ill.Rev.Stat.1977, ch. 60, par. 23) (the Act); and (3) neither the New Jersey documents nor the Illinois Governor's warrant indicate that the acts constituting the offense charged were done with the intent to commit a crime.

Our review of the record reveals that a Donald Newman was charged in New Jersey with several acts of conspiracy to violate that State's laws prohibiting the private placement of children for adoption. (N.J.Rev.Anno.Stat., §§ 2A:98-1, 2A:98-2 (West 1969).) The indictments alleged that Donald Newman on three specified occasions conspired with New Jersey residents, who were unindicted co-conspirators, to obtain a recently born child for them. Arrangements were made by telephone, and the co-conspirators came to Chicago where in each instance they obtained a baby from Donald Newman and paid him several thousand dollars.

Plaintiff filed a verified petition for writ of habeas corpus in which he denied that he was the person sought by New Jersey authorities. At the hearing on the motion, no testimonial evidence was presented in this regard, but plaintiff did introduce photocopies of pages of a lawyers' directory and Chicago area telephone books, showing that there was another attorney named Donald Newman in the area as well as six Donald Newmans and three D. Newmans.

The extradition documents were the only evidence offered by the State, and it is plaintiff's position that they do not establish him to be the person sought because they merely refer to Donald Newman as the person sought. We note, however, that a rebuttable presumption of identity arises when the name on such papers is the same as the person seeking to avoid extradition. (In re Extradition of Leonard (1975), 27 Ill.App.3d 870, 327 N.E.2d 480. Accord: Torrey v. Williams (Me.1978), 388 A.2d 921; Meek v. State (1975), 262 Ind. 618, 321 N.E.2d 205; State ex rel. Holmes v. Spice (1975), 68 Wis.2d 263, 229 N.W.2d 97; Mora v. Larson (Utah 1975), 540 P.2d 520; Hithe v. Nelson (1970), 172 Colo. 179, 471 P.2d 596.) This presumption would establish a prima facie validity to the issue of identity, and plaintiff would then have to show that he is not the person whose extradition is demanded (People ex rel. James v. Lynch (1959), 16 Ill.2d 380, 158 N.E.2d 60, Cert. denied (1959), 361 U.S. 864, 80 S.Ct. 123, 4 L.Ed.2d 104; Nelson v. People (1973), 11 Ill.App.3d 1092, 297 N.E.2d 172) and, as soon as such showing is made, the presumption vanishes entirely (Osborne v. Osborne (1927), 325 Ill. 229, 156 N.E. 306).

There is a variance as to the effect ascribed to a rebuttable presumption of identity of names when it is shown that other persons of the same name reside in the area (65 C.J.S. Names § 15 (1966)); however, we believe that the general considerations adopted in this State regarding rebuttable presumptions are applicable. As stated in McElroy v. Force (1967), 38 Ill.2d 528, 532-33, 232 N.E.2d 708, 710-11:

"A rebuttable presumption, such as exists here, is not evidence in itself, but arises as a rule of law or legal conclusion from facts proved. (Citations.) These presumptions 'do not shift the burden of proof. Their only effect is to create the necessity of evidence to meet the Prima facie case created thereby, and which, if no proof to the contrary is offered, will prevail.' (Citations.) Stated differently, the presence of a presumption in a case only has the effect of shifting to the party against whom it operates the burden of going forward and introducing evidence to meet the presumption. If evidence is introduced which is contrary to the presumption, the presumption will cease to operate. (Citations.) However where there is an absence of evidence to the contrary, the Prima facie case created under the presumption will support a finding. (Citation.)" Accord: Diederich v. Walters (1976), 65 Ill.2d 95, 2 Ill.Dec. 685, 357 N.E.2d 1128.

In the present case, although the charging documents were the only evidence offered indicating plaintiff to be the individual sought, he does not contest that the identity of names in those documents raised the presumption that he was the person charged. He takes the position, however, that the presumption was met by his contrary evidence. We disagree.

Plaintiff's written denial in the petition for writ of habeas corpus that he was the person named in the extradition proceeding is insufficient to rebut the presumption. (Peo. ex rel. Biggs v. Nash (1937), 366 Ill. 186, 8 N.E.2d 359.) While plaintiff did introduce documentary evidence that another Donald Newman was practicing law in the area and that there were six listings of Donald Newman and three of D. Newman in the local telephone directories, we are of the belief that they lend little, if any, support to plaintiff's position that he was not the person sought. Those documents merely demonstrate that other individuals have the same name and, in the absence of any other evidence showing that plaintiff was not the person sought, we conclude that plaintiff's evidence did not contravene the presumption raised by the identity of names that he was the person charged.

Plaintiff contends also that under section 6 of the Uniform Criminal Extradition Act (Act), the offense for which extradition is sought must be a crime in the asylum state. That section provides:

"The Governor of this State may also surrender, on demand of the Executive Authority of any other state, any person in this State charged in such other state in the manner provided in Section 3 with committing an act in this State, or in a third state, Intentionally resulting in a crime in the state whose Executive Authority is making the demand." Ill.Rev.Stat.1977, ch. 60, par. 23. (Emphasis added.)

We view this section as pertaining to instances where the individual sought was not in the demanding state at the time the offense occurred. It differs from the extradition of a fugitive who is alleged to have committed a crime in the demanding state and then flees. The latter situation is governed by section 3 of the Act. (Ill.Rev.Stat.1977, ch. 60, par. 20.)

Plaintiff posits that the aforesaid italicized language of section 6 of the Act should be construed as requiring that the crime charged in the demanding state be a criminal offense in the asylum state. In support of his position, plaintiff relies upon the counterpart statutory provisions of section 6 in New York (N.Y. (Criminal Procedure Law) § 570.16 (Consol.1971)) and Rhode Island (R.I.Gen.Laws 1956, sec. 12-9-8 (1970)), which expressly provide that the offense for which extradition is sought must be punishable in those states as a criminal offense. A recitation of the history of the New York statute is contained in People v. Hinton (1976), 40 N.Y.2d 345, 386 N.Y.S.2d 703, 353 N.E.2d 617, where the court discussed the legislative development of the N.Y. counterpart of section 6 which had been modified to expressly provide that the offense for which extradition is sought by the demanding state must be an offense in New York. Also, the applicable Rhode Island provision specifically provides that extradition may be granted "when the acts for which extradition is sought would be punishable by the laws of this state, if the consequences claimed to have resulted therefrom in the demanding state had taken effect in this state * * *." R.I.Gen.Laws, 1956, § 12-9-8 (1970).

In contrast to the statutory wording contained in the New York and Rhode Island provisions, section 6 of the Illinois Act contains no similar language. We consider section 6 to be plain and unambiguous, and thus it must be given its plain and ordinary meaning. (See Christian Action Ministry v. Department of Local Governmental Affairs (1978), 74 Ill.2d 51, 23 Ill.Dec 87, 383 N.E.2d 958.) It is not the function of this court to inject provisions not found in the statute (Droste v. Kerner (1966), 34 Ill.2d 495, 504, 217 N.E.2d 73, Appeal dism'd (1967), 385 U.S. 456, 87 S.Ct. 612, 17 L.Ed.2d 509, overruled on other grounds Paepcke v. Public Bldg. Comm. (1970), 46 Ill.2d 330, 263 N.E.2d 11) and we are thus led to the conclusion that the section 6 intentional conduct requirement cannot be reasonably interpreted to support plaintiff's argument that the conduct be an offense within the asylum state. Had the legislature intended otherwise, it would have been a simple matter to do so as evidenced by the statutory provisions of New York and Rhode Island.

Moreover, it was held in People v. Schwartz (1976), 64 Ill.2d 275, 1 Ill.Dec. 8, 356 N.E.2d 8, Cert. denied (1977), 429 U.S. 1098, 97 S.Ct. 1116, 51 L.Ed.2d 545 that while an attorney may render legal services to relinquishing or adopting parents, he or she must stop short of serving as an intermediary go-between or placing agent. Therefore, the charge in the indictment that plaintiff conspired with certain New York residents to obtain for them recently born children appears to sufficiently allege the commission of an...