                                                       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. ~ttorneyGeneral-, Helena, Montana
                                      Harold F. Hanser, Yellowstone County Attorney,
                                      Billings, Montana
                                      Curtis L . Reldoven, Deputy Yellovrstone County Attorney,
           ~n                       L l l i n g s , Montana
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                                                          Submitted on Briefs: March 9, 1989
                                                            Decided: April 12, 1989
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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:
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