though he did not remain in the foreign jurisdiction until the consummation of the crime. People ex rel. Goldfarb v. Gargan (1918), 181 App. Div. 410, 168 N. Y. Supp. 1027.

Where a relator is held under an extradition warrant on a charge of murder, he has the right upon the return of a writ of habeas corpus to traverse the finding upon the jurisdictional question whether he was within the demanding State at the time of the commission of the alleged offense. People ex rel. Debono v. Board of Police Comrs. (1915), 89 Misc. 248, 153 N. Y. Supp. 491, 32 N. Y. Cr. 499.

A person held for extradition for a crime committed in another State should not be discharged on habeas corpus merely because the warrant for arrest names him as "Morris Edelston, alias Edelstein," while the warrant of extradition names him as Morris Edelston, and he claims that his correct name is Morris Edelstein and that he can prove an alibi. People ex rel. Edelstein v.. Warden of City Prison (1912), 154 App. Div. 261, 138 N. Y. Supp. 1095, 29 N. Y. Cr. 492.

On habeas corpus in extradition proceedings the presentation to the Governor of this State of a copy of a duly certified information, with the requisition of the Governor of another State demanding relator's extradition, charging relator with the commission of an offense certified by such demanding Governor to be a crime in his State, is sufficient to require the surrender of the relator and the writ of habeas corpus must be dismissed. People ex rel. Currier v. Chief of Police (1916), 97 Misc. 254, 162 N. Y. Supp.

845.

Subd. 5. Miscellaneous Statutory Provisions Allowing Writ.
(Fiero, Spec. Pro., 3rd Ed., pp. 1249-1250.)

Insanity Law, § 93. Habeas Corpus.

Any one in custody as an insane person is entitled to a writ of habeas corpus, upon a proper application made by him or some friend in his behalf. Upon the return of such writ, the fact of his insanity shall be inquired into and determined. The medical history of the patient, as it appears in the case book, shall be given in evidence, and the superintendent or medical officer in charge of the institution wherein such person is held in custody, and any proper person, shall be sworn touching the mental condition of such person. Where a second or subsequent application is made for the discharge from custody of the same patient, any party to the proceeding may introduce in evidence any testimony, in relation to the mental condition of such patient, received upon any former hearing or trial, together with all the exhibits

introduced in evidence upon such hearing or trial in connection with such testimony without calling the witnesses who gave such testimony, such evidence to have the same force and effect as if such witnesses had been called.

Amended by L. 1913, ch. 542.

Subd. 6. Habeas Corpus on Commitment for Contempt.

(Fiero, Spec. Pro., 3rd Ed., pp. 1250-1252.)

If an attempt is made to punish witnesses for disobedience of a void subpoena they are entitled to a remedy by habeas corpus. People ex rel. Willett v. Quinn (1912), 150 App. Div. 813, 135 N. Y. Supp. 477, 27 N. Y. Cr. 388.

ARTICLE III.

DUTY OF COURT, OFFICER, OR OTHER PERSON RELATIVE TO WRIT.

(Fiero, Spec. Pro., 3rd Ed., pp. 1255-1256.)

Where an action is brought to recover a penalty under section 2051 of the Code of Civil Procedure for a second arrest which is prohibited by section 2050, the complaint must negative the exceptions contained in said section 2050. Sutton v. Butler (1911), 74 Misc. 251, 133 N. Y. Supp. 936, 26 N. Y. Cr. 413, affd., 151 App. Div. 894, 135 N. Y. Supp. 1145.

ARTICLE IV.

RETURN MUST BE MADE TO WRIT AND NOTICE OF HEARING.

(Fiero, Spec. Pro., 3rd Ed., pp. 1257-1260.)

Regardless of legislative provisions, a writ of habeas corpus may be made returnable in a county other than that in which the relator is restrained, though a court be in session in that county. People ex rel. Robin v. Hayes (1913), 82 Misc. 165, 143 N. Y. Supp. 325, affd., 163 App. Div. 725, 149 N. Y. Supp. 250.

ARTICLE V.

PROCEEDINGS ON RETURN.

(Fiero, Spec. Pro., 3rd Ed., pp. 1261-1275.)

SUBD. 1. Power of court or judge to inquire into cause of detention.

2. Traverse to return and its effect.

3. When petitioner remanded.

4. When petitioner discharged.

Subd. 1. Power of Court or Judge to Inquire into Cause of Detention. (Fiero, Spec. Pro., 3rd Ed., pp. 1261-1265.)

The court on a writ of habeas corpus in extradition proceedings will not go into the sufficiency of the indictment or the merits of the defense which are matters for the foreign court. People ex rel. Goldfarb v. Gargan (1918), 181 App. Div. 410, 168 N. Y. Supp. 1027.

A writ of habeas corpus cannot perform the functions of an appeal from a judgment of conviction; the court can only inquire into the question of jurisdiction and if it appears that the power existed to pronounce the judgment, the writ must be dismissed. People ex rel. Hubert v. Kaiser (1912), 206 N. Y. 46, affg., 150 App. Div. 541, 135 N. Y. Supp. 883. The court may look back of the warrant to see if the facts stated in the depositions of the prosecutor conferred jurisdiction upon the magistrate to issue the warrant. People ex rel. Wilson v. Warden of City Prison (1912), 151 App. Div. 108, 135 N. Y. Supp. 841; People ex rel. Burke v. McLaughlin (1912), 77 Misc. 13, 136 N. Y. Supp. 122, affd., 152 App. Div. 912, 137 N. Y. Supp. 1116, which is affd., 207 N. Y. 769. Where the magistrate who pronounced final judgment on a person for disorderly conduct had jurisdiction of the person and of the offense and had power to impose the sentence under which the relator is held, the matter is determined as a final judg ment so far as relator under the writ of habeas corpus is concerned, and the court before which the writ is returnable is precluded from reviewing the evidence on which the judgment rests. Cohen v. Warden of Workhouse (1913), 150 N. Y. Supp. 596.

In all cases of habeas corpus, the court will look into the depositions and the testimony to ascertain as to whether or not a crime has been proven against the defendant, and as to whether there is probable cause to believe that he committed the crime; and if there is not sufficient evidence as to the person who committed it, it is the duty of the court to discharge. People v. Gage (1914), 149 N. Y. Supp. 43.

Subd. 2. Traverse to Return and Its Effect.

(Fiero, Spec. Pro., 3rd Ed., pp. 1265-1268.)

The provision that a prisoner produced upon the return to a writ of habeas corpus may controvert the return, does not au

thorize the Special Term to accept as true statements of fact contained in his answer to the return without evidence to support them. People ex rel. Moore v. Holmes (1912), 151 App. Div. 257, 135 N. Y. Supp. 467.

There is ample precedent for the impaneling of a jury to aid in trying the issues of fact raised upon the traverse to the return in a habeas corpus proceeding. People v. Grifenhagen (1915), 154 N. Y. Supp. 965. The command of section 2039 of the Code of Civil Procedure for a "summary" way of procedure, means that it shall be prompt and without unreasonable and unnecessary delay, but whether the question of fact as to the sanity of the prisoner should be submitted to the jury for the aid of the court, is within the discretion of the justice to be decided by the circumstances of the particular case. People ex rel. Woodbury v. Hendrick (1915), 215 N. Y. 339.

Where an order of adoption recited all the jurisdictional facts necessary to its validity and that it appeared to the satisfaction of the county judge "that said minor has been abandoned by its parents," an allegation in the traverse to the return to a writ of habeas corpus that the mother had no notice of the proceeding raises a question of law affecting the validity of the order of adoption and it is error for the Special Term to dismiss the writ. Matter of Livingston (1911), 151 App. Div. 1, 135 N. Y. Supp. 328, revg., 74 Misc. 494, 134 N. Y. Supp. 148. Proceedings having been instituted in the Supreme Court, by means of a writ of habeas corpus, to recover from the guardian custody of a child, upon the return and traverse to which other facts were alleged than those testified to on a previous hearing, the Special Term should have taken evidence upon the issues of fact presented instead of sustaining the writ upon the papers. Matter of Lee (1917), 220 N. Y. 532.

Section 2039 of the Code of Civil Procedure and section 93 of the Insanity Law are mutually exclusive. People v. Grifenhagen (1915), 154 N. Y. Supp. 965.

Subd. 3. When Petitioner Remanded.

(Fiero, Spec. Pro., 3rd Ed., pp. 1268-1270.)

Section 2032 of the Code of Civil Procedure is not unconstitutional. People ex rel. Hubert v. Kaiser (1912), 150 App. Div.

541, 135 N. Y. Supp. 274, affd., 206 N. Y. 46; see People ex rel. Goldstein v. Clancy (1914), 163 App. Div. 614, 616, 148 N. Y. Supp. 977.

Where it does not appear upon whom a writ of habeas corpus was served, or by whom the prisoner was produced before the Supreme Court, or that any notice of the proceeding was given to a person interested in continuing the imprisonment, or that any one made formal return to the writ, as required by the statute, the court has no jurisdiction to direct the discharge of the prisoner. People v. Warden Kings County Jail (1914), 160 App. Div. 408, 145 N. Y. Supp. 1064.

Where a petition for a writ of habeas corpus shows that relator was duly convicted of murder in the second degree and duly sentenced to life imprisonment in a State prison from which he was transferred to a State hospital as an insane person, the writ must be dismissed on the ground that on the face of the petition it appeared that relator was detained by virtue of a final judgment of a competent tribunal of criminal jurisdiction. People ex rel. Stephani v. North (1915), 91 Misc. 616, 155 N. Y. Supp. 595.

A judgment convicting a defendant of petit larceny not charged as a first offense is not illegal and excessive because it includes a provision that he be imprisoned "at hard labor," and cannot be reviewed on habeas corpus. People ex rel. Gainance v. Platt (1911), 148 App. Div. 579, 132 N. Y. Supp. 939.

Where, upon a verified complaint made to a city judge charging the relator with abandonment of his minor children, he was arrested upon a warrant sufficient upon its face, the question of the relator's guilt or innocence of the offense charged cannot be determined on habeas corpus and he must be remanded to custody. People ex rel. Armstrong v. Quigley (1912), 75 Misc. 151, 134 N. Y. Supp. 953.

Subd. 4. When Petitioner Discharged.

(Fiero, Spec. Pro., 3rd Ed., pp. 1270-1275.)

Where a prisoner is held under a judgment of a court made without authority of law, the proper tribunal will, upon habeas corpus, look into the record so far as to ascertain the fact, and if it be found to be so, will discharge the prisoner. People ex rel.