Opinion
No. 81SA122
Decided June 28, 1982. Rehearing denied August 3, 1982.
Appeal from the District Court of El Paso County, Honorable Donald E. Campbell, Judge.
J. Gregory Walta, Colorado State Public Defender, Deborah S. Waldbaum, Deputy State Public Defender, for petitioner-appellant.
J. D. MacFarlane, Attorney General, Richard F. Hennessey, Deputy Attorney General, Mary J. Mullarkey, Solicitor General, Mary E. Ricketson, Assistant Attorney General, for respondent-appellee.
En Banc.
This appeal is from a district court judgment denying appellant's petition for writ of habeas corpus and ordering his extradition to the state of Texas. We affirm the judgment.
A Texas grand jury indicted Bruce Cane Beverly for aggravated robbery. He was later arrested in Colorado and charged in the district court with being a fugitive from justice. Section 16-19-101, et seq., C.R.S. 1973 C.R.S. 1973 (1978 Repl. Vol. 8). Thereafter, pursuant to a demand for the extradition of Bruce Cane Beverly submitted by the state of Texas, a Colorado governor's warrant was issued ordering his arrest and return to Texas.
At the hearing on his petition for writ of habeas corpus, the appellant challenged the sufficiency of the requisition documents on the sole ground that his name was not as shown on the documents. A driver's license and birth certificate were introduced which showed his name to be Bruce Lane Beverly and not Bruce Cane Beverly as shown in the requisition documents. Appellant, however, presented no additional evidence to disprove that he was the individual sought to be extradited, or that he was not also known by the name of Bruce Cane Beverly. It is significant to note also that appellant's petition for a writ of habeas corpus does not allege he is not in fact the same individual indicted in the state of Texas for aggravated robbery, or named in the extradition documents. The district court, therefore, denied his petition for habeas corpus and ordered his extradition to Texas.
Appellant again argues on appeal that the extradition documents were insufficient to establish that he is the fugitive sought by the state of Texas. We disagree. In Guy v. Nelson, 630 P.2d 610 (Colo. 1981), this court recently rejected a similar argument as made here, and ruled that:
"The identity between the name in the extradition document and the name in the governor's warrant establishes a prima facie case that the person charged as a fugitive is indeed the fugitive sought by the demanding state. . . . Once a prima facie showing of identity is made, the person charged as a fugitive must carry the burden of disproving the presumed identity. . . . Clear and convincing evidence must be shown by the accused that he is not the person sought in order to rebut the prima facie showing of identity. . . ."
The extradition documents issued by the state of Texas and the Colorado governor's warrant both set forth the name of the fugitive as Bruce Cane Beverly. Thus, the presumption arose that the appellant is in fact the fugitive sought by the state of Texas. The minor discrepancy in the middle name, standing alone, does not affect this presumption under the facts of this case where appellant remained silent at the hearing with reference to any showing that he was not in fact the fugitive sought by the state of Texas, and where his petition for a writ of habeas corpus does not allege he is not in fact the fugitive named in the extradition documents. See Richardson v. Cronin, 621 P.2d 949 (Colo. 1980); Samples v. Cronin, 189 Colo. 40, 536 P.2d 306 (1975); Dilworth v. Leach, 183 Colo. 206, 515 P.2d 1130 (1973).
As stated in section 13-45-103(1), C.R.S. 1973, habeas corpus proceedings are summary in nature. Under the facts of this case, we therefore hold that it was incumbent upon the appellant to make some showing in his petition for a writ of habeas corpus or at the hearing that he was not in fact the person sought by Texas authorities. See In re Extradition of Leonard, 27 Ill. App.3d 870, 327 N.E.2d 480 (1975). Here, the appellant relies solely on a technical discrepancy in a middle name in challenging the sufficiency of the extradition documents. Under summary proceedings, sole reliance on such a technical item, when appellant does not allege or represent that he is not the fugitive, will not suffice to defeat extradition. See Wollweber v. Martin, 226 Ga. 20, 172 S.E.2d 605 (1970).
The judgment of the district court is affirmed.
JUSTICE LOHR dissents.
JUSTICE DUBOFSKY does not participate.