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Show MONDAY, OCTOBER 7, 1974 PAGE ELEVEN INTERMOUNTAIN COMMERCIAL RECORD State presumptively the itate would furnish the transcript supporting its effort to extradite, - which it didn't. direct examination, findings of fact based on the evidence, and conclusions, prior to judgment, - most of which were not existent but quite ethereal here. Emphasis added. cross-examinatio- This case has a record so short that it represents a brochure of a brochure. The following colloquy represents the entire record so far as this case is concerned: n, WE CONCUR: A. H. Housley (plaintiff's attorney): Your Honor, this is a Habeas Corpus case, and the only issue is Mr. Madsen's identity. The Governor's warrant in support of it referred to a Dennis Mads en with no middle name, no address, no other means of identification. I made a check and there are at least four other Dennis Mads ens in the area, possibly five. Ellett, Justice . R. L. Tuckett, Justice CALLISTER, Chief JuBtice: ..iion, his counsel respectfully dissent. At the hearing on plaint', was iv. the stated that ft' a counsel Mr. Madsen's identity, only issue ."Minis Madsen elaborated by stating that the' governor's warrant refov with no middle name, no address, and no other mean;. I i.- titification. Plain-ht'iiri- is tiff's counsel represented that there were four or fiv ..:.h Madsens in the Salt Lake and northern Utah area. Based on tl luroomg, plaintiff's counsel urged that the papers and the warrant were in.- if: lei out on their face to support the arrest and return of Dennis Madsen. Plaintiff's counsel admitted that there had been a hearing before the governor on these issues, although no copy of the transcript of that hearing was available. I Court: What area, California? Housley: No, Salt Lake and northern Utah area. One of them is in Or em, one is in Magna, two are in Salt Lake, that area, and our position is, your honor, that the papers and the warrant are insufficient on their face to. support the arrest and return of Dennis Madsen. . - ..: - Bullen (Attorney for State): My understanding was that there was a hearing held before the Governor on the issues. Housley: That is true. Bullen: And apparently satisfied the Governor. a transcript at this time. 1. Scott v. Beckstead, 13 The trial court queried whether that was the entire basis for plaintiff's petition for the writ. Plaintiff's counsel responded in the affirmative. The court thereupon denied the petition for the writ of habeas corpus. I don't have The trial court found that the cause of petitioner's restraint was a governor's warrant. The legality of the restraint and the sufficiency of the documents had been adjudicated in a prior proceeding. The trial court further found that the only issue before the court was that of petitioner's identification; that the governor's hearing had been had on this issue; that there was no cause to believe that petitioner was not the person being sought in the governor's warrant. The trial court dismissed plaintiff's motion and concluded his restraint was legal under Chapter 56 of Title 77, U. C. A. 1953. Utah 2d 428, 375 P. 2d 767 (1962). Court: That is the entire basis for your Writ? Housley: Yes, sir. (Dissenting) - Court: Well, over your strenuous objection I will deny the petition for the Writ and the Governor's warrant will be granted. Before the trial court, plaintiff's sole point was the sufficiency of the documents on their face to identify him as the Dennis Madsen within the state of Utah, whom the state of California sought. Housley: Your Honor, may I have a stay of ten days in the execution of the warrant so I can perfect my appeal? Court: Yes. Upon receipt of .a requisition, the governor of the asylum state must determine as a question of fact, whether the person is a fugitive from justice. The necessary elements to support a determination that a person is a fugitive from justice are: (1) He was in the state where the alleged crime was committed; (2) at the alleged time of the commission thereof; (3) that he left the state and came to the asylum state; and (4) that he is the person sought. Habeas corpus is an appropriate proceeding to determine whether one is a fugitive from justice; a petitioner, seeking to defeat extradition,' has the burden of establishing that he is not a fugitive from justice. We think that under the circumstances, the only reasonable and just thing to do under the statute and cases, is to return this case to the trial court for the purpose of conducting an evidentiary hearing, - and can see no good reason other- wise, in good conscience. A few observations must be made about the dissent in this case. It is bottomed principally on two cases: 1. Morreaux v. Ferrin and 2. Scott v. Beckstead, two of our own Utah cases. Both seem to be inapropos here and not at all dispositive of the instant case. r f The warrant for extradition by the governor of the asylum state supported by duly authenticated extradition papers from the demanding state establishes a prima facie case to support the extradition of the person held. 2 To exonerate plaintiff from the charge of being a fugitive from justice, he must show the con trary by clear and convincing evidence. 3 there was a plenary hearing, with direct and cross tion made available; there were findings and conclusions entered based examinaon the was and introat the adduced available evidence Governor's the evidence; hearing In Moreaux duced. None of these factors was a work product in the instant case. there was a stipulation as to what eventuated at the extradition hearing and it was In Morreaux In the instant action, plaintiff proffered no proof to controvert the factual that he was a fugitive from justice, which as previously mentioned determination agreed that Moreaux was "the person named in the information. " Such fact was not stipulated here, but on the contrary the gravamen of the instant proceeding wai incorporates identity. Upon interrogation by the court, plaintiff's counsel specified that his evidence concerned the adequacy of the description of plaintiff on proof of identification which was resolved without evidence and only by way of an apodictic gratuity indulged by the trial court over counsel's "strenuous objection,1 the governor's warrant. In other words, the warrant was the product of a factual determination that plaintiff was the one sought by the state of California; plaintiff about which there is no intimation here. proffered no evidence to controvert that fact. His sole point was that the name on the face of the warrant was insufficient, since several others in this geographical Scott v. Beckstead equally is inapposite. There was a plenary hearing; area had a similar name. This contention was without merit, arid the trial court the opinion there asked two questions: 1) Whether the evidence supported plainnot err in dismissing the petition. 4 did tiff's identity, and 2) Whether he was a fugitive. Here no such evidence was permitted, and the trial court assumed something (the Governor's infallibility) Crockett, Justice, concurs in the views expressed in the dissenting opinion of Mr. that to date has not been tested under common ordinary rules of due process. Chief Justice Callister. The suggestion that petitioner should have proffered some kind of testimony 1. Moreaux v. Ferrin, 98 Utah 450, 100 P. 2d 560 (1940). seems somewhat absurd in the light of the colloquy mentioned above, together 2. Scott v. Beckstead, 13 Utah 2d 428, 375 P. 2d 767 (1962); People ex rel. James with the almost unbelievable statement of counsel for the State that he did not v. Lynch, 16 111. 2d 380, 158 N. E. 2d 60 (1959), cert. den. 361 U.S. 864, 80 S. Ct. have a transcript of the Governor's proceeding with him at this important hear4 L.Ed.2d 104; Krutka v. Bryer, 150 Colo. 293, 372 P. 2d 83 (1962). 123, ing involving a man's freedom, - when the State itself, through our statute, pro3. Scott v. Beckstead, note 2, supra. voked this very habeas corpus hearing and, we think, in all good conscience,, 4. ". . . In order for the proof to be sufficiently strong to require us to reverse should have had its evidence at the hearing. Scott v. Beckstead generally states the trial court's decision his defense must be established by such clear and convincing evidence that it would be unreasonable for the trial court to find that he general principles with which the main opinion has no quarrel, but its decision is a fugitive from justice and therefore refuse to give him his release of where the all basics a at after protracted evidentiary hearing, was arrived v. Beckstead, note 2, supra, at page 432 of 13 Utah 2d. Scott , of issues, due process were present, including charge, notice, answer, joinder ..." New Corporation filings are listed for the entire State of Utah as recorded in the Secretary of State's Office. CONSTRUCTION, INC., 960 SLC, UT George Shirecliff 8416. M. Rd., Directors: McMillan, 9(0 Shirecliff Rd., SLC, UT 84016; Paul Badger, 1020 Kearns Bldg., SLC, 84101; E. Nordell Weeks, 140 W. 100 N. , Bountiful, UT 84010. 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To engage in a general paint contracting business, COMMUNICATION ELECTRONICS use in both mobile vehicle and stationary locations, and all other electronics equipment. and servicing of communication equip and acropsoriP'' for with particular reference to painting and waterproofing of structures, houses, residences, and any other general painting, decorating, texturing and RD paper-hangin- GRAPHICS g. , INC.. , 730 E. 4500 S., SLC.UT 84107. Directors: Stephen M, Thornton, 730 E. 4500 S., SLC,UT 84107; George P. Chris topulos, 1997 S. Wasatch Dr., SLC, 8tll7; Claude R. Novell, 4626'Idlewild Rd., SLC, UT To conduct a 84117. UT |