It is usually made by petition in writing, verified by affidav:t, stating that the peti tioner is unlawfully detained, etc., and, where the imprisonment is under legal process, a cropy thereof, if attainable, should be pre sented with the petition ; for where the pri soner is under sentence on conviction for crime, or in execution on civil process, or committed for treason or felony plainly ex pressed in the warrant, he is not, in most of the states, entitled to the writ. Hurd, Hab. Corp. 209-228.
17. The return. The to whom the writ is directed is required to produce the body of the prisoner forthwith before the court or officer therein named, and to show the cause of the caption and detention. 5 Term, 89 ; 2 South. N. J. 545 ; Hurd, Hab. Corp. 239-242.
If the writ be returned without the body, the return must show that the prisoner is not in the possession, custody, or power of the party making the return, or that the pri soner cannot, without serious danger to his life, be produced ; and any evasion on this point will be dealt with summarily by attach ment. 5 Term, 89 ; 10 Johns. N. Y. 328 ; 1 Dudl. Ga. 46 ; 5 Cranch, C. C. 622 ; Hurd, Hab. Corp. 244.
Where the detention is claimed under legal process, a copy of it is attached to the return. Where the detention is under a claim of pri vate custody, all the facts relied on to justify the restraint are set forth in the return.
18. The hearing. The questions arising upon the return or otherwise in the proceed ing, whether of fact or of law, are determined by the court or judge, and not by a jury. Hurd, Hab. Corp. 299, The evidence on the hearing is such as is allowed in other summary proceedings in which the strictness exacted on the trial in civil actions or criminal prosecutions is some what relaxed, the practice sometimes per mitting affidavits to be read where there has been no opportunity for cross-examination ; but the introduction of such evidence rests in the sound discretion of the court. Coxe, N. J.
403 ; Sandf. N.Y. 701 ; 20 How. State Tr. 1376 ; 1 Burr's Trial, 97 ; Hurd, Hab. Corp. 303-324.
Pending the hearing, the court may commit the prisoner for safe keeping from day to day, until the decision of the case. 14 How. 134 ; Bacon, Abr. Habeas Corpus (B 13) ; 5 Mod. 22 ; Hurd, Hob. Corp. 324.
If the imprisonment be illegal, it is the duty of the court to discharge the prisoner from that imprisonment ; but if the court or officer hearing the habeas corpus be invested with the powers of an examining and com mitting magistrate in the particular case, and the evidence taken before the court, or regu larly certified to it in the habeas corpus pro ceeding, so far implicate the prisoner in the commission of crime as to justify his being held for trial, it is usual for the court, in de fault of bail, to commit him as upon an ori ginal examination. 3 East, 157 ; 2 Pars. Eq. Cas. 317 ; 3 Penn. Law Jour. 459 •, 16 Penn. St. 575; 2 Cranch, C. C. 612 ; 5 Cow. N. Y. 12 ; Hurd, Hab. Corp. 416-427.
If the prisoner is not discharged or com mitted de novo, he must be remanded, or, in a proper case, let to bail ; and all offences — - ,prior to the conviction of the offender are bailable, except " capital offences when the proof is evident or presumption great." Hurd, nab. Corp. 430-449.
19. Recommitment after disoharge. The act of 31 prohibited, under the pe nalty of five hundred pounds, the eim prison ing for the same offence of any person set at large on habeas corpus, except by the legal order and process of such court wherein such prisoner was bound by recognizance to ap pear, or other cour•having jurisdiction of the cause. Somewhat similar provisions are found in the statutes of many of the states. But these provisions are not held to prevent the subsequent arrest of the prisoner on other and more perfect process, although relating to the same criminal act. 9 Pet. 704 ; 2 Miss. 163.