§ 1466.

CHAPTER II.

APPEALS TO SUPERIOR COURTS.

Appeals, when allowed.

§ 1467. Appeals, how taken, heard, and determined.

§ 1469.

If new trial granted, in what court had.

§ 1470. Proceedings, if appeal is dismissed or judgment affirmed.

1466. Either party may appeal to the Superior Court of the county from a judgment of a Justice's or Police Court, in like cases and for like cause as appeals may be taken to the Supreme Court. In effect April 12th, 1880.] See 26 Cal. 635.

1467. The appeal is taken, heard, and determined as provided in title nine, part two, of this Code.

See ante, §§ 1235-65.

1468. The appeal to the Superior Court from the judgment of a Justice's or Police Court is heard upon a statement of the case settled by the justice or police judge, embodying such rulings of the court as are excepted to, which statement must be filed with and settled by the court within ten days after filing notice of appeal. [In effect April 12th, 1880.]

See 26 Cal. 635.

1469. If a new trial is granted upon appeal, it must be had in the Superior Court. [In effect April 12th, 1880.] See 26 Cal. 635.

1470. If the appeal is dismissed or the judgment affirmed, a copy of the order of dismissal or judgment of affirmance must be remitted to the court below, which may proceed to enforce its sentence.

Jurisdiction.-The Superior Court has jurisdiction on habeas corpus to issue any and all process necessary to the execution of its judgment, as over a person arrested on a bench-warrant after affirmance of judgment-54 Cal. 345; see Const. Cal. art. 6, § 5.

TITLE XII.

Of Special Proceedings of a Criminal Nature. CHAP. I. OF THE WRIT OF HABEAS CORPUS, §§ 1473-1505. II. OF CORONERS' INQUESTS AND DUTIES OF CORONERS, §§ 1510-19.

III. OF SEARCH-WARRANTS, §§ 1523-42.

IV.

PROCEEDINGS AGAINST FUGITIVES FROM JUS-
TICE, §§ 1547-58.

V. MISCELLANEOUS PROVISIONS RESPECTING SPE-
CIAL PROCEEDINGS OF A CRIMINAL NATURE,
§§ 1562-4.

PEN. CODE.-49.

§ 1475.

§ 1476.

§ 1477.

1478.

§ 1479.

§ 1480.

§ 1473.

CHAPTER I.

OF THE WRIT OF HABEAS CORPUS.

Who may prosecute writ.

§ 1474. Application for, how made.

By whom issued, and before whom returnable.
Writ must be granted without delay.

Writ, what to contain.

How served.

Proceedings upon disobedience to the writ.
Return, what to contain.

§ 1488.

§ 1489.

Not to be discharged for defect of form in warrant
Proceedings on defective warrant.

§ 1493.

§ 1494.

§ 1495.

§ 1496.

§ 1497.

§ 1498.

§ 1499.

Person in illegal, may be committed to legal, custody.
Disposition of party, pending proceedings on return.
Defect of form in the writ immaterial, when.
Imprisonment after discharge, when permitted.
Warrant may issue instead of writ, in certain cases.
Warrant may include person charged with illegal detention.
Warrant, how executed.

§ 1504. Where returnable.

1505. Damages for failure to issue or obey the writ.

1473. Every person unlawfully imprisoned or restrained of his liberty, under any pretense whatever, may prosecute a writ of habeas corpus, to inquire into the cause

of such imprisonment or restraint. 30th, in effect July 1st, 1874.]

[Approved March

Who may prosecute. A prisoner is entitled to a writ of habeas corpus as a matter of right, except when he is committed or detained under a final judgment-16 Barb. 362. It may be employed to effect the release of a person to whom a pardon has been addressed-8 Blatchf. 89; 2 Abb. U. S. 382; 8 How. Pr. 478; 2 Parker Cr. R. 650. A writ of habeas corpus ad testificandum may be allowed to bring up a prisoner charged, în execution upon a ca. sa., to testify in relation to his own application for a discharge as an insolvent-5 Cowen, 176. It is not the proper remedy for a person imprisoned on a ca. sa. irregularly issued; the remedy is by motion and affidavit-4 Johns. 317. See Code of Civ. Proc. §§ 33, 34.

Persons out on bail are not entitled to this writ directed to their bail-McCahon, 152. Whether the court may, by a writ of habeas corpus to the executive officer of another court, take a prisoner from the custody of the latter-query?-7 Cush. 285. It cannot be used as a writ of quo warranto to decide a question of usurpation of office-3 Barb. 162. The governor of a State is not vested with the power of its suspension under a Constitution giving him power to suppress insurrection-64 N. C. 802. The prerogative of suspending the writ belongs exclusively to Congress-1 Abb. U. S. 212; 21 Ind. 370; Taney, 246; 16 Wis. 359; and the executive discretion may be inquired into in every case where the liberty of the subject is involved-5 Cal. 238; see Fed. Const. art. 1, § 9, subd. 2; Const. Cal. art. 1, § 5.

Writ, when it lies.-The writ of habeas corpus may be appealed to for the purpose of settling the question of bail, where there is probable cause against the party-52 Ala. 311; 54 Cal. 75; 2 Ashm. 227; id. 247; 3 Brev. 89; 15 Fla, 633; Dudley, 296; 3 Ind. 293; 11 Leigh, 665; 17 Mass. 116; id. 175; 8 Mo. 483; 56 Miss. 39; 30 id. 681; 2 Pittsb. Rep. 362; 5 Rand. 646; see 43 Miss. 1. It lies for redress under a void sentence-8 Blatchf. 89; 18 Wall. 163; 49 Mo. 291; 9 Nev. 43; 60 N. Y. 559; 3 Mich. 207; 30 id. 502; 41 Tex. 488; but not where the error lies simply in the mode of expressing the sentence-26 Int. Rev. Rec. 11. So, the averments of a sentence of conviction cannot be disputed on a writ of habeas corpus, except for fraud, non-identity, or want of jurisdiction-43 Cal. 455; 49 id. 160.

A regular demand under the act of Congress, and warrant of the governor to surrender a fugitive, cannot be inquired into on habeas corpus-4 Har. (Del.) 572. The question whether the jury was properly or legally discharged because of inability to agree cannot be tried on habeas corpus-41 Cal. 219. The writ cannot be used by a State court for the purpose of revising arrests under Federal process -21 How. 506; 13 Wall. 397; 1 Abb. U. S. 140; 37 Ala. 474; 9 Johns. 239; 11 Mich. 298; 5 Nev. 154; 27 N. J. L. 409; 25 Wis. 390; 11 Blatchf. 79.

1474. Application for the writ is made by petition, signed either by the party for whose relief it is intended, or by some person in his behalf, and must specify

1. 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.

2. If the imprisonment is alleged to be illegal, the petition must also state in what the alleged illegality consists.

3. The petition must be verified by the oath or affirmation of the party making the application.

Application, how made.-The writ will not be granted unless sufficient cause be shown-7 Cush. 285; or if nugatory-7 Wheat. 38; 1 Serg. & R. 353; 20 Ala. 89; 11 Bush, 628; 26 Pa. St. 9; 10 Nev. 212; 15 Wis. 179; see 18 Wall. 163. An affidavit that affiant is unlawfully detained will be sufficient to entitle him to a writ of habeas corpus without other allegation-1 Smedes & M. 149. The petition should state facts on which the charge of illegal restraint rests-8 Kan. 99; 10 Nev. 212; 12 id. 87; see 1 Smedes & M. 149; 1 Cranch C. C. 159; 6 Ark. 28; 26 Ill. 532; 52 id. 311; verified by affidavit or attested by witnesses-13 Abb. Pr. 8; 44 Ala. 17; Dudley, 46; 4 Cranch C. C. 75. The application may be made by any relative or appropriate friend-3 Ben. 442; 3 Hill, 399; 24 Pick. 227; 10 id. 274; 107 Mass. 154; 42 Iowa, 598; but not a mere stranger-2 McAr. 683; 1 Cush. 385. Where it appeared that the petitioner was in custody under a commitment after a conviction for felony, the writ was refused-40 Tex. 451. Where the petition shows that the petitioner, if brought before the court, could not be discharged, the writ will not be granted-7 Cush. 285.

The doctrine of res adjudicata does not apply to proceedings on habeas corpus-28 Cal. 247; 2 id. 424. The decision of one court or judge refusing to discharge on habeas corpus is not a bar to another application before another court or judge-28 Cal. 247.

By whom issued.-The judiciary have jurisdiction to investigate cases where a party is arrested as a fugitive from justice from other States-5 Cal. 238; see post, § 1548. State courts and judges have no authority to release a prisoner on habeas corpus, when he is in the custody of the authorities of the United States, pursuant to a judgment by a Federal tribunal having jurisdiction-49 Cal. 162; 21 How. 523. A State court will not intervene in extradition cases when the demandant is a foreign sovereign-59 N. Y. 110; 50 N. Y. 321; 45 How. Pr. 296; id. 301; 10 Serg. & R. 125.

To deprive State courts of jurisdiction on habeas corpus within State territory ceded to the United States, such jurisdiction must have been expressly surrendered by the State-7 Cowen. 471. Where a person is unlawfully held under a judgment of a Federal court, the State court will examine the record, and upon ascertaining the fact will discharge him-18 Wall. 163; but a State court will not grant a writ of habeas corpus to a person committed under an act of CongressCharlt. 142.

When the inquiry involves a question of conflict between State and Federal process, counsel have no right to appear in defense of the State process, without being duly authorized to do so-2 Wall, Jr. 521. The writ should not issue to run out of the county, unless for good cause shown-11 Cal. 222. The allowance of the writ in term-time is not obligatory, but rests in the sound legal discretion of the court, but its allowance may be obligatory upon the judges in their individual capacity-11 Cal. 222; and if local judges refuse to act, resort may be had to officers out of the county-id. The statement in the indictment of some offense known to the law, is essential to the jurisdiction of the court, and is, therefore, a fact to be inquired into-22 Cal. 178. Where a court of competent jurisdiction refuses to discharge on habeas corpus, a court of concurrent jurisdiction may decline to issue the writ in the same case, unless there be an allegation of new facts-5 Binn. 304; see 43 Tex. 579.