magistrate show the error relied on.-People vs. Ma- 1469. If a new trial is granted upon appeal, it must be had in the County Court, except the appeal is from the Police Judge's Court of San Francisco, in which case a copy of the order granting a new trial must be remitted to that Court, and the trial had therein. NOTE.-Stats. 1858, p. 217, Sec. 4; People vs. Maguire, 26 Cal., p. 635. If new trial in what granted, Court had. ings, if dismissed 1470. If the appeal is dismissed or the judgment Proceedaffirmed, a copy of the order of dismissal or judgment appeal is of affirmance must be remitted to the Court below, judgment which may proceed to enforce its sentence. NOTE.-Stats. 1858, p. 217, Sec. 4. affirmed. TITLE XII. OF SPECIAL PROCEEDINGS OF A CRIMINAL NATURE. CHAPTER I. Of the writ of habeas corpus. II. Of Coroners' inquests and duties of III. Of search warrants. IV. Proceedings against fugitives from jus SECTION 1475. By whom issued, and before whom returnable. 1477. Writ, what to contain. 1478. How served. 1479. Proceedings upon disobedience to the writ. 1480. Return, what to contain. 1481. Body must be produced, when. 1482. When hearing may proceed without production of the body. 1483. Hearing on return. 1484. Proceedings on the hearing. 1485. When Court may discharge the party. 1486. When to remand party. 1487. Grounds of discharge in certain cases. 1488. Not to be discharged for defect of form in warrant. 1489. Court may examine witnesses, and discharge, hold to bail, or recommit. 1490. Writ for purposes of bail. 1491. Judge may take bail. 1492. Judge, when to remand. 1493. Person in illegal, may be committed to legal, custody. 1497. Warrant may issue instead of writ, in certain cases. detention. 1499. Warrant, how executed. 1500. Return and hearing on. 1501. Party may be discharged or remanded. 1502. Writ and process may issue and be served at any time. 1503. By whom issued and when returnable. 1504. Where returnable. 1505. Damages, by whom recovered, for failure to issue or obey the writ. 1473. Every person unlawfully committed, detained, confined, 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. NOTE.-See generally as to jurisdiction in matters of habeas corpus.-Code of Civil Procedure, Secs. 33, note; 44, note. OFFICE OF THE WRIT OF HABEAS CORPUS.-Habeas corpus is undoubtedly the proper remedy for every unlawful imprisonment, both in civil and criminal cases; but an imprisonment is not unlawful in the sense of this rule merely because the process or order under which the party is held has been irregularly issued or is erroneous. Process which has been irregularly issued may be set aside by the Court or officer by whom it was issued, and erroneous judgments and orders may be reversed on appeal or writ of error. The writ of habeas corpus has not been given for the purpose of reviewing judgments or orders made by a Court, or Judge or officer acting within their jurisdiction. To put it to such a use would be to convert it into a writ of error, and confer upon every officer who has authority to issue the writ appellate jurisdiction over the orders and judgments of the highest judicial tribunals in the land. County Judges, though occupying an inferior position, and exercising an inferior jurisdiction, would be, by such a rule, empowered to review and practically reverse the judgments and orders of the District Courts, and of the Supreme Court itself, and also of the Federal Courts exercising jurisdiction within the State. Establish the doctrine that the judgments and orders of Courts may be reviewed on habeas corpus, upon the ground of error, and appeals for the correction of errors may be dispensed with in all cases in which the arrest or imprisonment of persons is allowed. Every criminal action, every civil action in which an arrest is given, and every proceeding for a contempt, could be brought to the Supreme Court by writs of habeas corpus. Not only that, but, as already suggested, inferior tribunals would be called upon to review the judgments of superior tribunals, and tribunals of equal grade to interfere and review each other's proceedings. Such a rule would render all judicial proceedings amorphous, and lead to the utmost confusion and disorder. It is well settled that habeas corpus can be put to no such use, and that its functions, where the party who has appealed to its aid is in custody under process, do not extend beyond an inquiry into the jurisdiction of the Court by which it was issued, and the validity of the process upon its face.-People vs. Cassels, 5 Hill, p. 167; People vs. Sheriff of New York, 7 Abbott, p. 96; Ex Parte Gibson, 31 Cal., p. 619; Ex Parte McCullough, 35 Cal., p. 101. JURISDICTION. By the Act of April 20th, 1852, the power of hearing and determining writs of habeas corpus is vested in the Judge of every Court of record in the State. The final determination is not that of a Court, but the simple order of a Judge, and is not Application for, how made. By whom issued, and before whom returnable appealable from or subject to review.-In the Matter of Perkins, 2 Cal., p. 424. The Judiciary have jurisdiction by habeas corpus to investigate cases where a party is arrested as a fugitive from justice, escaped from another State.-In the Matter of Manchester, on habeas corpus, 5 Cal., p. 237. 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. 1475. The writ of habeas corpus may be granted: 1. By the Supreme Court, or any Justice thereof, upon petition on behalf of any person restrained of his liberty in this State. When so issued, it may be made returnable before the Court or any Justice thereof, or before any District or County Court, or any Judge thereof; 2. By the District Courts, or a Judge thereof, upon petition on behalf of any person restrained of his liberty in their respective districts; 3. By the County Courts, or a Judge thereof, upon petition on behalf of any person restrained of his liberty in their respective counties. NOTE.-See note to Sec. 1490, post. Although the Supreme Court may issue the writ of habeas corpus, its allowance in term time is not obligatory, but rests in the sound legal discretion of the Court. To allow it may be obligatory upon the Judges in their individual capacity.-Ex Parte Ellis, 11 Cal., p. 222. If the local ISSUANCE OF WRIT.-The writ should not issue to be granted delay. 1476. Any Court or Judge authorized to grant the Writ must writ, to whom a petition therefor is presented, must, if without it appear that the writ ought to issue, grant the same without delay. to contain. 1477. The writ must be directed to the person Writ, what having custody of or restraining the person on whose behalf the application is made, and must command him to have the body of such person before the Court' or Judge before whom the writ is returnable, at a time and place therein specified. served. 1478. If the writ is directed to the Sheriff or How other ministerial 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. |