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officer of the court out of which it issues, it must be delivered by the clerk to such officer without delay, as other writs are delivered for service. If it is directed to any other person, it must be delivered to the sheriff, and be by him served upon such person by delivering the same to him without delay. If the person to whom the writ is directed can not be found, or refuses admittance to the officer or person serving or delivering such writ, it may be served or delivered by leaving it at the residence of the person to whom it is directed, or by affixing it to some conspicuous place on the outside either of his dwellinghouse or of the place where the party is confined or under restraint.

1479. If the person to whom the writ is directed refuses, after service, to obey the same, the court or judge, upon affidavit, must issue an attachment against such person, directed to the sheriff or coroner, commanding him forthwith to apprehend such person, and bring him immediately before such court or judge; and upon being so brought, he must be committed to the jail of the county until he makes due return to such writ, or is otherwise legally discharged.

1. Return to the Writ.-Sec. 1480, n. 1.

1480. The person upon whom the writ is served must state in his return, plainly and unequivocally:

1. Whether he has or has not the party in his custody, or under his power or restraint;

2. If he has the party in his custody or power, or under his restraint, he must state the authority and cause of such imprisonment or restraint;

3. If the party is detained by virtue of any writ, warrant, or other written authority, a copy thereof must be annexed to the return, and the original produced and exhibited to the court or judge on the hearing of such return;

4. If the person upon whom the writ is served had the party in his power or custody, or under his restraint, at any time prior or subsequent to the date of the writ of habeas corpus, but has transferred such custody or restraint to another, the return must state particularly to whom, at what time and place, for what cause, and by what authority such transfer took place;

5. The return must be signed by the person making the same, and, except when such person is a sworn public officer, and makes such return in his official capacity, it must be verified by his oath.

1. Return to the Writ.-The answer in writing, signed by the party to whom the writ is addressed, stating the time and cause of the caption and detention of the prisoner, and his production before the court or judge; or, if the prisoner be not produced, then the reasons for not producing him, constitute the return. Hurd on Habeas Corpus (2d ed.), 235. Such return must be made without delay, and if not so made, may be enforced by attachment. The return should be properly addressed to the court to whom the writ is returnable, but a mistake in the address or direction will not be deemed material. Brass Crosby's case, 2 W. Bl. 754. See secs. 1401, 1404. The production of the body of the prisoner constitutes an essential element of the proceeding on writ of habeas corpus. The supreme court of Massachusetts has said that without the production of the body, the writ is without effect; the case has no status, and the court will hear no evidence upon the question of the validity of the imprisonment. Com. v. Chandler, 11 Mass. 83.

1481. The person to whom the writ is directed, if it is served, must bring the body of the party in his custody or under his restraint, according to the command of the writ, except in the cases specified in the next section.

1482. When, from sickness or infirmity of the person directed to be produced, he can not, without danger, be brought before the court or judge, the person in whose custody or power he is may state that fact in his return to the writ, verifying the same by affidavit. If the court or judge' is satisfied of the truth of such return, and the return to the writ is otherwise sufficient, the court or judge may proceed to decide on such return, and to dispose of the matter as if such party had been produced on the writ, or the hearing thereof may be adjourned until such party can be produced.

1483. The court or judge before whom the writ is returned must, immediately after the return, proceed to hear and examine the return, and such other matters as may be properly submitted to their hearing and consideration.

1484. The party brought before the court or judge, on the return of the writ, may deny or controvert any of the material facts or matters set forth in the return, or except to the sufficiency thereof, or allege any fact to show either that his imprisonment or detention is unlawful, or that he is entitled to his discharge. The court or judge must thereupon proceed in a summary way to hear such proof as may be produced against such imprisonment or detention, or in favor of the same, and to dispose of such party as the justice of the case may require, and have full power and authority to require and compel the attendance of witnesses, by process of subpoena and attachment, and to do and perform all other acts and things necessary to a full and fair hearing and determination of the case.

1485. If no legal cause is shown for such imprisonment or restraint, or for the continuation thereof, such court or judge. must discharge such party from the custody or restraint under which he is held.

1486. The court or judge, if the time during which such party may be legally detained in custody has not expired, must remand such party, if it appears that he is detained in custody:

1. By virtue of process issued by any court or judge of the United States, in a case where such court or judge has exclusive jurisdiction; or,

2. By virtue of the final judgment or decree of any competent court of criminal jurisdiction, or of any process issued upon such judgment or decree.

1487. If it appears on the return of the writ that the prisoner is in custody by virtue of process from any court of this state, or judge or officer thereof, such prisoner may be discharged in any of the following cases, subject to the restric

tions of the last section:

1. When the jurisdiction of such court or officer has been exceeded;

2. When the imprisonment was at first lawful, yet by some act, omission, or event which has taken place afterwards, the party has become entitled to a discharge;

3. When the process is defective in some matter of substance required by law, rendering such process void;

4. When the process, though proper in form, has been issued in a case not allowed by law;

5. When the person having the custody of the prisoner is not the person allowed by law to detain him;

6. Where the process is not authorized by any order, judg ment, or decree of any court, nor by any provision of law;

7. Where a party has been committed on a criminal charge without reasonable or probable cause.

1. Defective Commitment.-Where the offense charged is so defectively set forth in the warrant of commitment that the prisoner can not be held thereunder, but it appears from the papers that he ought not to be discharged, the judge, hearing the application on habeas corpus, ought to hold the party for examination, and cause the complainant and witnesses to attend before him for that purpose. Ex parte Branigan, 19 Cal. 133. A commitment by a justice of the peace, holding a party to appear before a grand jury to answer upon a charge of murder, should state the name of the person alleged to have been murdered; but if it do not do so, the omission will not entitle the accused to be discharged on habeas corpus. Ex parte Bull, 42 Id. 196. Where it appears on habeas corpus that the commitment under which the prisoner is held is void, and it further appears that there is a valid judgment of impris

onment against him, rendered by a competent court of criminal jurisdiction, of which a certified copy may be obtained, it will be the duty of the court not to immediately discharge the prisoner, but to order him retained until a certified copy of the judgment has been obtained, or a reasonable length of time has been allowed for that purpose, and then, if obtained, to remand him. Ex parte Gibson, 31 Id. 619.

2. Commitment not Allowed by Law.- Where, upon application to be discharged by habeas corpus, it appears that the prisoner by virtue of a commitment in due form is detained to answer an indictment, the court or judge may proceed to inquire whether the indictment charges any offense known to the law; and, upon determining that it does not, may discharge the prisoner. In re Corryell, 22 Cal. 178. Where the constitutionality of the law under which the conviction was had is questioned, it is usually held that the court in which the conviction was had, necessarily affirmed the constitutionality of the law, in rendering its judgment of conviction, and that this affirmance can not be avoided on habeas corpus. In re Harris, 47 Mo. 164; In re Underwood, 30 Mich. 502; Ex parte Fisher, 6 Neb. 309. The court will, however, on habeas corpus, take judicial notice that the facts set forth in the complaint constitute no crime under the general laws of the state, and if it affirmatively appear from the records of an inferior court that a person was tried and sentenced to be punished for an act which is not a crime, the judg ment is absolutely void, and the person in custody under such judgment is entitled to his discharge. Ex parte Kearney, 55 Cal. 212.

3. Commitment without Reasonable or Probable Cause.—The gen eral rule is that if the commitment be legally sufficient in all respects, the prisoner will be remanded, or, in proper cases, admitted to bail. But the rule is not invariable. Ex parte Bollman, Cranch, 75; 1 Chit. Crim. L. 129. Even if the commitment be regular, the court will look into the depositions, to see if there be sufficient ground laid to detain the party in custody, and if not, will discharge or bail him. People v. Smith, 1 Cal. 9.

4. Commitments for Contempt.-A party committed for refusing to answer questions propounded to him as a witness under an order that he stand committed till he answers the questions, will be discharged on habeas corpus where it appears that the suit has abated. Ex parte Rowe, 7 Cal. 175. Where, pending an application for a writ of mandate to a county treasurer, his term of office ceases, but judgment is afterwards rendered against him, and the writ issued, the judgment and writ have no force against his successor, and proceedings against such successor for contempt, for refusing to obey the writ, are void for lack of jurisdiction, and on habeas corpus he will be discharged. Ex parte Tinkum, 54 Id. 201. But a commitment under a co viction for contempt is a commitment in execution, and the judgment of conviction can not ordinarily be attacked under the writ of habeas corpus except for such gross defects as render the proceeding void. Ex parte Kearney, 7 Wheat. 38; Yates' case, 4 Johns. 318; McLaughlin's case, 5 Watts & S. 275; Ex parte Adams, 25 Miss. 883; State v. Woodfin, 5 Ired. 199. Where, upon an application for discharge upon a writ of habeas corpus by an executor who was in custody under an order of the superior court, adjudging him guilty of contempt in refusing to pay over money under a decree of distribution, it was held that since the court had jurisdiction and the proceedings were

con.

regular and valid on their face, the petitioner was not entitled to be discharged. Ex parte Cohn, 55 Cal. 193.

5. Requisition for Fugitive from Justice.-The judiciary have jurisdiction by habeas corpus to investigate cases where a party is arrested as a fugitive from justice, escaped from another state. The courts possess no power to control the executive discretion in surrendering fugitives from justice, nor can they compel a surrender in such case, yet, the executive having acted, that discretion may be examined into in every case where the liberty of the citizen is involved. But it seems that the court will not require that the affidavit on which the requisition is issued should set forth the crime charged with all the legal exactness necessary to be observed in an indictment. In re Manchester, 5 Cal. 237.

1488. If any person is committed to prison, or is in custody of any officer on any criminal charge, by virtue of any warrant of commitment of a justice of the peace, such person must not be discharged on the ground of any mere defect of form in the warrant of commitment.

1489. If it appears to the court or judge, by affidavit or otherwise, or upon the inspection of the process or warrant of commitment, and such other papers in the proceedings as may be shown to the court or judge, that the party is guilty of a criminal offense, or ought not to be discharged, such court or judge, although the charge is defective or unsubstantially set forth in such process or warrant of commitment, must cause the complainant or other necessary witnesses to be subpoenaed to attend at such time as ordered, to testify before the court or judge; and upon the examination he may discharge such prisoner, let him to bail, if the offense be bailable, or recommit him to custody, as may be just and legal.

1490. When a person is imprisoned or detained in custody on any criminal charge, for want of bail, such person is entitled to a writ of habeas corpus for the purpose of giving bail, upon averring that fact in his petition, without alleging that he is illegally confined.

1491. Any judge before whom a person who has been committed on a criminal charge may be brought on a writ of habeas corpus, if the same is bailable, may take an undertaking of bail from such person as in other cases, and file the same in the proper court.

1. Habeas Corpus for Purpose of Bail.-Where the prisoner has been indicted, his guilt will be assumed, on habeas corpus, for the purpose of obtaining a reduction of bail. Ex parte Duncan, 53 Cal. 410; Ex parte Ryan, 44 Id. 555. After the prisoner is convicted, bail should not be allowed, except by the judge of the court where the conviction was had, or by a justice of the supreme court, and then only when circumstances of an extraordinary

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