Proceedings upon disobedi

ence to the writ.

Roturn, what to contain.

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 cannot 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 dwelling house 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, commahding 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.

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.

be
when.

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

hearing

may

proceed

wit

production of the body.

1482. When, from sickness or infirmity of the per- When son directed to be produced, he cannot, 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.

return.

1483. The Court or Judge before whom the writ Hearing on 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.

ings on the

hearing.

1484. The party brought before the Court or ProceedJudge, 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

When

Court may discharge

the party.

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.

NOTE. It was held that it was the right and duty of the Supreme Court, on habeas corpus, to review the decisions of inferior Courts in cases of contempt, as well as in others.-Ex Parte Rowe, 7 Cal., p. 181.

RETURN OF WRIT.-Upon a return to a writ of habeas corpus, it is proper for the Court to look into the depositions taken before the committing magistrate, in order to ascertain whether there is probable cause to suppose that a felony has been committed by the pris oner.-People vs. Smith, 1 Cal., p. 9.

HEARING ON HABEAS CORPUs.-If, at the hearing on habeas corpus, the Warden of the prison has not a certified copy of the judgment in a criminal action in his hands, and it appears that a judgment authorizing the detention of the defendant was entered, a copy of which can be procured, the Judge or Court will give a reasonable time to procure such copy, and, if obtained, quash the writ.-In Re Edward Ring, 28 Cal., p. 247.

130.

ISSUES OF FACT.-On habeas corpus it is not competent to retry issues of fact, or to review the proceedings of a legal trial.-Ex Parte Bird, 19 Cal., p. The statement in an indictment of some offense known to the law is essential to the jurisdiction of the Court, and is, therefore, under well settled rules, a fact which may be inquired into upon habeas corpus.—In Re Corryell, 22 Cal., p. 178. The doctrine of res adjudicata does not apply to proceedings on habeas corpus.--In Re Edward Ring, 28 Cal., p. 247; In Re Perkins, 2 Cal., p. 424.

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.

NOTE. Where five females are brought before the Court on a return to a writ of habeas corpus, and the person in whose custody they are, neither shows nor claims any legal right to detain them, they will be discharged.-Ex Parte The Queen of the Bay, 1 Cal., p.

157.

remand

1486. The Court or Judge, if the time during When to which such party may be legally detained in custody party. 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.

NOTE.-Subd. 1.-See Matter of Manchester, 5 Cal., p. 23; also, note to Sec. 1548, post.

WHEN PRISONER WILL BE REMANDED.-If it appears on habeas corpus that the commitment to the State Prison, under which the prisoner is held, is void, and if it further appears that there is a valid judgment of imprisonment against the petitioner, rendered by a competent Court of criminal jurisdiction, of which a certified copy can be obtained, the Court or Judge will order the prisoner to be retained until a certified copy of the judgment has been obtained, or until a reasonable time has been allowed for that purpose, and then, if obtained, remand him.-Ex Parte Gibson, 31 Cal., p. 619.

ERRORS REACHED BY HABEAS CORPUS.-A prisoner committed on final process will not be discharged on habeas corpus, by reason of defects in the judgment, unless the judgment is absolutely void. Mere errors, however flagrant, which only render a judgment voidable, cannot be inquired into under this writ.-People vs. Smith, 1 Cal., p. 9.

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 restrictions of the last section:

Grounds of in certain

discharge

cases.

Same.

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, judgment, 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.

NOTE. It has been suggested to omit the seventh subdivision, because there was no provision requiring magistrates to have the testimony taken down, and, therefore, the subdivision was inoperative. Instead of omitting the subdivision, the Commissioners have required the magistrate to reduce the testimony to writing. See Sec. 869.

Subd. 1.-Ex Parte Cook, 35 Cal., p. 108.

Subd. 4.-Ex Parte Cook, 35 Cal., p. 108. Where, on habeas corpus, the offense charged is so defectively set forth in the warrant of commitment that the party cannot be held thereunder, but it appears from the papers that he ought not to be discharged, the Judge hearing the application 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., p. 133. Where, upon application for discharge by habeas corpus, it appears that the prisoner, by virtue of a commitment in due form, is detained to answer an indictment pending in a criminal Court, the Court or Judge hearing the application 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., p. 178. A party committed for refusing to answer