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Writ of habeas corpus, how served.

SEC. 1478. If the writ is directed to the sheriff or 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. 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 can not 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. [Pen. Code. ]

Return of writ of habeas corpus, what to contain.

SEC. 1480. The person upon whom the writ is served must state in his return, plainly and urequivocally,

1. Whether he has or has not the party in his custody, or under his power or restraint.

1 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 retuin.

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.

ū. 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. [Pen. Code.]

Body must be produced, when.

SEC. 1181. The person to whom the writ is directed, if it i served, must bring the body of the party in his custody 02

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under his restraint, according to the command of the writ,
except in the cases specified in the next section. [Pen. Code.]

Failure to produce body in obedience to writ is con-
tempt of court where the court finds that respondent has
power to do so: 77 Cal. 156.

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When hearing may proceed without production of body.

SEC. 1482. When, from sickness or infirmity of the person directed to be produced, he can not, 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. [Pen. Code.]

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Hearing on return.

SEC. 1483. The court or judge before whom the writ 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. [Pen. Code.]

See Penal Code, section 1484, for proceedings on return.

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When courts may discharge.

SEC. 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. [Pen. Code.]

When cumulative sentences are imposed, prisoner is entitled to commutation credits for good behavior upon each term only as it is served, and not upon separate terms to which he has been sentenced treated as an entire term, and he will not be discharged upon writ of habeas corpus before he has earned credits for good behavior upon each term as it is served: 145 Cal. 186.

A state's prisoner convicted and sent from one county and afterwards tried before the superior court of another county for another offense before the original sentence has expired, is not entitled to be discharged upon habeas corpus though he has been tried upon the charge last named, convicted and sentenced to be hanged: 85 Cal. 203.

As to when courts are to remand, see Pen. Code, sec. 1486. As to when judges remand, see Pen. Code, sec. 1492.

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Grounds of discharge in certain cases.

SEC. 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 :

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. [Pen. Code.]

Courts may not, in certain cases, discharge for defect in form of warrant, see Pen. Code, sec. 1488.

As to proceedings on defective warrant, see Pen. Code, sec. 1489.

Persons committed from illegal to legal custody,
Pen. Code, sec. 1493.


Writ for purposes of bail.

SEC. 1490. When a person is imprisoned or detained in custody on any criminal charge, for want of bail, such person is 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. [Pen. Code.]

Disposition of party, pending proceedings on return.

SEC. 1494. Until judgment is given on the return, the court or judge before whom any party may be brought on such writ may commit him to the custody of the sheriff of the county, or, place him in such care or under such custody as his age or cir cumstances may require. [Pen. Code.]

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When defect in form of writ immaterial.

Sec. 1495. No writ of habeas corpus be disobeyed for defect of form, if it sufficiently appear therefrom in whose custody or under 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. [Pen. Code.]

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When imprisonment after discharge.

SEC. 1496. No person who has been discharged by the order of the court or judge upon habeas corpus can be again imthe prisoned, restrained or kept in custody for the same cause, except in the following cases :

1. If he has been discharged from custody on a criminal charge, and is afterwards committed for the same offense, by Lier legal order or process.

2. If, after a discharge for defect of proof, or for any defect of the process, warrant, or commitment in a criminal case, the

prisoner is again arrested on sufficient proof and committed by ide

legal process for the same offense. [Pen. Code.]


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When warrant issues instead of writ.

SEC. 1497. When it appears to any court or judge, authorized by law to issue the writ of habeas corpus, that any one is illegally held in custody, confinement, or restraint, and that there is reason to believe that such person will be carried out of the jurisdiction of the court or judge before whom the application is made, or will suffer some irreparable injury before compliance with the writ of habeas corpus can be enforced, such court or judge may cause

a warrant to be issued, reciting the facts, and directed to the Cu sheriff, coroner, or constable of the county, commanding such ei officer to take such person thus held in custody, confinement, ba' or restraint, and forthwith bring him before such court or judge, ti to be dealt with according to law. [Pen. Code.]

Writ and process may issue at any time.

SEC. 1502. Any writ or process authorized by this chapter may be issued and served on any day or at any time. [Pen. Code.]


l; Writs, processes, etc., by whom issued, and when returnable.

SEC. 1503. All writs, warrants, process, and subpænas authorized by the provisions of this chapter must be issued by the



clerk of the court, and, except subpænas, must be sealed with the seal of such court, and served and returned forthwith unless the court or judge shall specify a particular time for any such return. [Pen. Code. ]

Where returnable.

SEC. 1504. All such writs and process, when made return able before a judge, must be returned before him at the county seat, and there heard and determined. [Pen. Code.]

C. RELATING TO TESTIMONY OF CONVICTS. Procedure when a convict in state prison is a material witness

in a criminal action. SEC. 1333. When the testimony of a material witness for the people is required in a criminal action, before a court of record of this state, and such witness is a prisoner in the state prison, or in a county jail, an order for his temporary removal from such prison or jail, and for his production before such court, may be made by the court in which the action is pending: or by the judge thereof; but in case the prison or jail is out of the county in which the application is made, such order shall only be made upon the affidavit of the district attorney or other person, on behalf of the people, showing that the testimony is material and necessary; and even then the granting of the order shall be in the discretion of the court or judge. The order shall be executed by the sheriff of the county in which it shall be made, whose duty it shall be to bring the prisoner before the proper court, to safely keep him, and when he is no longer re.' quired as a witness, to return him to the prison or jail whence he was taken; the expense of executing such order shall be paid by the county in which the order shall be made. [Pen. Code.]

This section refers only to witnesses for the people, and not witnesses for the defendant, subject to the discretion of the court, and for this reason, that the defendant may in all cases have the benefit of the prisoner's deposition, but in cases of homicide, the state can not. Besides the district attorney, acting in the interests of public justice, and under the obligations of his oath will not abuse his privilege, but there is no security that the defendant ir. criminal cases would not do so; indeed, it is highly prob. able that they would: 82 Cal. 456.

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