State Ex Rel Zitek v. Clark

244 Or. 111 (1966)

416 P.2d 3

STATE EX REL ZITEK v. CLARK. STATE EX REL CHASE v. CLARK

Supreme Court of Oregon.

Argued June 10, 1966.

Affirmed June 22, 1966.

*112 Oscar D. Howlett, Portland, argued the cause and filed the brief for appellants.

Jacob B. Tanzer, Portland, argued the cause for respondent. On the brief were George Van Hoomissen, District Attorney, and George M. Joseph, Deputy District Attorney, Portland.

Before GOODWIN, Presiding Justice, and DENECKE, HOLMAN, LUSK and SCHWAB, Justices.

AFFIRMED.

PER CURIAM.

Plaintiffs separately brought habeas corpus proceedings testing the validity of their attempted extradition to the state of Washington on Governor's warrants. They appeal from a dismissal of their writs. The separate proceedings were consolidated for both hearing and appeal.

The only basis for the writs was the plaintiffs' contention that they were not fugitives from justice because they were not in the state of Washington at the time of the commission of the alleged crime. The only witness was a victim who identified plaintiffs as two of the men who robbed him. He admitted, on cross examination, that the men who held him up wore stocking masks without eye-slits which they never removed. He identified plaintiffs from other physical characteristics in addition to their faces. Plaintiffs claim the testimony was wholly unbelievable.

1-4. The recitals in the rendition warrants that *113 plaintiffs are fugitives from justice are presumed to be true. The burden of overcoming such a presumption is on plaintiffs. The Governor's decision that plaintiffs were fugitives from justice will not be overturned on conflicting evidence. Plaintiffs must establish by conclusive evidence that they were not fugitives from justice. Ex Parte Montoya, 170 Or 499, 503, 135 P2d 281 (1943).

5. Plaintiffs offered no proof. The most they could legitimately contend was that they had, by cross examination, cast doubt upon the correctness of the victim's identification.

The orders dismissing the writs are affirmed.