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AN ACT concerning the Writ of Habeas Corpus.- [Passed April

20, 1850.]

The People of the State of California, represented in Senate and

Assembly, do enact as follows :

writ—how made.


Section 1. Every person unlawfully committed, detained, confined, who may proseor restrained of his liberty, under any pretence whatever, may prose- habeas corpus. eute a writ of habeas corpus, to inquire into the cause of such imprisonment or restraint.

Sec. 2. Application for such writ shall be made by petition, signed Application for either by the party for whose relief it is intended, or by some person in his behalf, and shall specify : 1st, That the person in whose behalf the writ is applied for, is imprisoned or restrained of his liberty; the officer or person by whom he is so confined or restrained; and the place where, naming all the parties, if they are known, or describing them, if they are not known. 2d, If the imprisonment be alleged to be illegal, the petition must also state in what the alleged illegality consists. 3d, The petition must be verified by the oath or affirmation of the party making the application.

Sec. 3. Such writ of habeas corpus may be granted by the Su- Who may grant preme Court, or any Judge thereof, or any District or County Court in term time, or by any Judge of such Courts at any time, whether in term or vacation.

Sec. 4. Any Court or Judge empowered to grant any writ applied Writ to be grantfor under this act, to whom such petition might be presented, if it appear that the writ ought to issue, shall grant the same without delay.

Sec. 5. Such writ shall be directed to the officer or party having To whom writ is such person in custody or under restraint, commanding him to have the body of such person so imprisoned or detained, as it is alleged by petition before the Court or Judge, as the case may be, at such time as the Court or Judge shall direct, specifying in such writ the place where the petition will be heard, to do and receive what shall then and there be considered concerning such person, together with the time and cause of his detention, and have then there such writ. Sec. 6. If such writ be directed to the Sheriff or other ministerial When directed to

sheriff, etc.


to be directed.

to any other person.

officer of the Court out of which said writ is issued, it shall be delivered by the clerk to such officer without delay, as other writs are

delivered for service. When directed Sec. 7. If such writ be directed to any officer or person other than

is specified in the last preceding section, the same shall be delivered to the Sheriff, or his deputy, or the Coroner, as the case may require, and shall be by him served upon such officer or person, by delivering

the same to him without delay. Service of writ. Sec. 8. If the officer or person to whom such writ is directed can

not be found, or shall refuse admittance to the officer or person serve ing or delivering such writ, the same may be served or delivered, by leaving it at the residence of the officer or person to whom it is directed, or by affixing the same on some conspicuous place on the outside either of his dwelling-house, or of the place where the party is

confined or under restraint. Refusing to obey Sec. 9 If the officer or person to whom such writ is directed rewrit.

fuse, after due service as aforesaid, to obey the same, it shall be the duty of the Court or Judge, upon affidavit, to issue an attachment against such person, directed to the Sheriff or Coronor, as the case may require, commanding him forthwith to apprehend such person, and bring him immediately before such Court or Judge; and upon being so brought, he shall be committed to the jail of the county until he make due return to such writ, or be otherwise legally dis

charged. What to be Sec. 10. The officer upon whom such writ shall be duly served,

shall state in his return, plainly and unequivocally, 1st, Whether he have or have not the party in his custody, or under his power or restraint. 2d, If he have the party in his custody or power, or under his restraint, he shall state the authority and cause of such imprisonment or restraint, setting forth the same at large. . 3d, If the party be detained by virtue of any writ, warrant, or other written authority, a copy thereof shall be annexed to the return, and the original shall be produced and exhibited to the Court or Judge on the hearing of such return. 4th, If the officer or person upon whom such writ shall have been served, shall have had the party in his power or custody, or under his restraint, any time prior or subsequent to the date of the writ of habeas corpus, but such officer or person has tranferred such custody or restraint to another, the return shall state particularly at what time and place, for what cause, and by what authority, such transfer took place. 5th, The return must be signed by the person making the same, and, except when such person shall be a

stated in return to writ.


sworn public officer, and shall make such return in his official capacity, it shall be verified by his oath or affirmation. Sec. 11. If the writ of habeas corpus be served, the person or Party in custody

to be brought up. officer to whom the same is directed shall also 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 two sections.

Sec. 12. Whenever, from sickness or infirmity of the person Exceptions. directed to be produced by any writ of habeas corpus, such person cannot, without danger, be brought before the Court or Judge, the officer or person in whose custody or power he is, may state that fact in his return to the writ, verifying the same by affidavit. Sec. 13. If the Court or Judge be satisfied of the truth of such When court

may proceed in allegation of sickness or infirmity, and the return to the writ is other- absence of the wise sufficient, such 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.

Sec. 14. The Court or Judge before whom a writ of habeas corpus Ilearing to take shall be returned, shall, immediately after the return thereof, proceed ly after return. to hear and examine the return, and such other matters as may be properly submitted to their hearing and consideration.

Sec. 15. The party brought before the Court or Judge, on the re- Facts stated in turn of the writ, may deny or controvert any of the material facts bo controverted. 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.

Sec. 16. Such Court or Judge shall thereupon proceed in a sum- Court to hear mary way to hear such allegation and 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.

Sec. 17. Such Court or Judge shall have full power and authority May compel to require and compel the attendance of witnesses, by process of witnesses. subpoena and attachment; and to do and perform all other acts and things necessary to a full and fair hearing and determination of the



Sec. 18. If no legal cause be shown for such imprisonment or re- When court may straint, or for the continuation thereof, such Court or Judge shall dis- party. charge such party from the custody or restraint under which he is held.

Sec. 19. It shall be the duty of such Court or Judge, if the time when party to


Prisoner in custody on process


during which such party may be legally detained in custody has not expired, to remand such party, if it shall appear that he is detained in custody: First. 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 Second. 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.

Sec. 20. If it appear on the return of the writ of habeas corpus, from any Court that the prisoner is in custody by virtue of process from any Court of be discharged in this state, or Judge or officer thereof, such prisoner may be dis

charged in any one of the following cases, subject, however, to the restrictions of the last preceding section : First. When the jurisdiction of such Court or officer has been exceeded. Second. 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 be discharged. Third. When the process is defective in some matter of substance required by law, rendering such process void. Fourth. When the process, though proper in form, has been issued in a case not allowed by law. Fifth. When the person having the custody of the prisoner is not the person allowed by law to detain him. Sixth. Where the process is not authorized by any judgment, order, or decree of any Court, nor by any provision of law. Seventh. Where a party has been committed on a criminal charge

without reasonable or probable cause. Party not to be Sec. 21. If any person be committed to prison, or be in custody discharged for defect of form in of any officer on any criminal charge, by virtue of any warrant or

commitment of a Justice of the Peace, such person shall not be discharged from such imprisonment or custody on the ground of any mere defect of form in such warrant or commitment.

Sec. 22. If it shall appear to the Court or Judge, by affidavit, or and discharge or hold to bai).

hearing of the matter, or otherwise, or upon the inspection of upon the process or warrant of commitment, and such other papers in the proceedings as may be shown to such Court or Judge, that the party is guilty of a criminal offence, or ought not to be discharged, such Court or Judge, although the charge be defectively or unsubstantially set forth in such process or warrant of commitment, shall cause the complainant, or other necessary witnesses, to be subpoenaed to attend at such time as shall be ordered, to testify before such Court or Judge; and upon the examination, he shall discharge such prisoner, let him to bail if the offence be bailable, or recommit him to custody, as may be just and legal.


Court may examine witnesses

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ha beas corpus.

entitled to dis.

Sec. 23. Whenever any person may be imprisoned or detained in Habeas corpus custody on any criminal charge for want of bail, such person shall be of giving buil. 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.

Sec. 24. Any Judge before whom any person who has been com- Recognizance mitted on a criminal charge may be brought on a writ of habeas brought up on corpus, if the same be bailable, may take a recognizance from such person, as in other cases; and shall file the same in the

proper Court without delay.

Sec. 25. If any party brought before the Court or Judge, on the Person, not return of the writ, be not entitled to his discharge, and be not charge or not bailed, where such bail is allowable, such Court or Judge shall remand be remanded. him to custody, or place him under the restraint from which he was taken, if the person under whose custody or restraint he was, be legally entitled thereto.

Sec. 26. In cases where any party is held under illegal restraint Party in illegal or custody, or any other person is entitled to the restraint or custody committed to

legal custody. of such party, such Judge or Court may order such party to be committed to the restraint or custody of such person as is by law entitled thereto.

Sec. 27. Until judgment be given on the return, the Court or Disposition of Judge before whom any party may be brought on such writ, may com- proceedings on mit him or her to the custody of the Sheriff of the county; or place him or her in such case, or under such custody, as his or her age or circumstances may require.

Sec. 28. No writ of habeas corpus shall be dissolved for defect of Habeas corpus form, if it sufficiently appear therefrom in whose custody or under dissolved for whose restraint the party imprisoned or restrained is, the officer or person detaining him, and the Court or Judge before whom he is to be brought.

Sec. 29. No person who has been discharged by the order of the Persons Fourt or Judge upon a habeas corpus, issued pursuant to the pro- habeas corpus visions of this act, shall be again imprisoned, restrained, or kept in imprisoned for custody for the same cause : 1st, If he shall have been discharged from custody on a criminal charge, and be afterwards committed for the same offence, by legal order or process : or, 2d, If, after a discharge for defect of proof, or for any defect of the process, warrant, or commitment, in a criminal case, the prisoner be again arrested on sufficient proof and committed by legal process for the same offence.

Sec. 30. Whenever it shall appear, by satisfactory proof by affida- Warrant may be

the return.

defect of form.

discharged on

same cause.

issued instead of

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