AppLication for the writ. This may be made by the prisoner, or by any one on his behalf, where for any reason he is unable to make it. It is usually made by petition in writing, verified liy affidavit, stating that the petitioner is unlawfully detained, etc., and, where the imprisonment is under legal pro cess, a copy thereof, if attainable, should be presented with the petition ; for where the prisoner 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, Flab. Corp. 209; Church, Flab. Corp. 91. The application must set forth the facts concern ing the detention of the party restrained, in whose custody he is detained, and by virtue of what authority, if known; In re Cuddy, 131 U. S. 280, 9 Sup. Ct. 703, 33 L. Ed, 154. If it appears from the petition itself that the applicant for the writ is not entitled thereto, the writ need not be awarded ; Ex parte Terry, 128 U. S. 289, 9 Sup. Ct. 77, 32 L. Ed. 405; In re Haskell, 52 Fed. 795.
Where, with ample opportunity to do so, an accused did not apply for the writ of habeas corpus until after the jury had been sworn and his trial begun in a state court, the federal court will not interpose at that stage of the cause ; Cook v. Hart, 146 U. S. 183, 13 Sup. Ct. 40, 36 L. Ed. 934.
The writ may be issued to determine the right to the custody of an infant as between parents who are living apart; In re Barry, 42 Fed. 113. A mere stranger or volunteer, in no way entitled to the custody of or re sponsible for the welfare of an infant, nor invited by the infant or its parents or guard ian to do so, has no right to a writ ; In re Pool, 2 MacArth. (D. C.) 583, 29 Am. Rep. 628; Brown v. Robertson, 76 S. C. 151, 56 S. E. 786, 9 L. R. A. (N. S.) 1173 and note; King's Case, 161 Mass. 46, 36 N. E. 685, col lecting cases. An appeal generally lies from a judgment on the application for the writ where the custody of an infant is involved; People v. Court of Appeals, 27 Colo. 405, 61 Pac. 592, 51 L. R. A. 105; Bleakley v. Smart, 74 Kan. 476, 87 Pac. 76, 11 Ann. Cas. 125 (where mandamus was granted to compel hearing for a new trial) ; contra, Matthews v. Hobbs, 51 Ala. 210. It has been held that if there be.no statute, a judgment in habeas corpus is neither reviewable or res judicata; Skinner v. Sedgbeer, 8 Kan. App. 624, 56 Pac. 136 ; contra, State v. Smith, 65 Wis. 93, 26 N. W. 258 ; see 20 Harv. L. Rev. 237.
The return. The person 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; In re Nicholls, 5 N. J. L. 545. The return must specify the true cause of the detention; and the party imprisoned may deny any of the facts set forth in the return, or may al lege other facts that may be material in the case, so that the facts may be ascertained and the matter disposed of as law and jus tice require; In re Cuddy, 131 U. S. 280, 9 Sup. Ct. 703, 33 L. Ed. 154. No evidence is necessary to support the return, as it im ports verity until impeached ; Crowley v. Christensen, 137 U. S. 86, 11 Sup. Ct. 13, 34 L. Ed. 620.
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 prisoner cannot, without serious danger to his life, be produced ; and any evasion on this point will be dealt with summarily by attachment; 5 Term 89; In re Stacy, 10 Johns. (N. Y.) 328; State v. Philpot, 1 Dudl.
(Ga.) 46; U. S. v. Davis, 5 Cra. C. C. 622, Fed. Cas. No. 14,926.
Where the detention is claimed under le gal process, a copy of it is attached to the return. Where the detention is under a claim of private custody, all the facts re lied on to justify the restraint are set forth in the return.
The hearing. The questions arising upon the return or otherwise in the proceeding, 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 somewhat relaxed, the practice sometimes permitting affidavits to be read where there has been no opportunity for cross-examina tion; but the introduction of such evidence rests In the sound discretion of the court ; Archb. Cr. Pl. & Pr. 204 ; State v. Lyon, 1 N. J. L. 403; In re Heyward, 1 Sandf. (N. Y.) 701; 20 How. S. Tr. 1376; 1 Burr's Trial 97. The court is not concluded by the find ing of a committing magistrate, but may go behind his order of commitment, and by cer tiorari look into the evidence before him; In re Martin, 5 Blatchf. 303, Fed. Cas. No. 9,151; Gosline v. Place, 32 Pa. 520 ; See U. S. v. Don On, 49 Fed. 569.
Pending the bearing the court may com mit the prisoner for safe-keeping from day to day, until the decision of the case; In re Kaine, 14 How. (U. S.) 134, 14 L. Ed. 345; Bac. Abr. Habeas Corpus (B 13) ; 5 Mod. 22.
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 he in vested with the powers of an examining and committing magistrate in the particular case, and the evidence taken before the court, or regularly certified to it in the habeas corpus proceeding, so far implicate the prisoner in the commission of crime as to justify his be ing held for trial, it is usual for the court, in default of bail, to commit him as upon an original examination ; 3 East 157 ; Ex parte Bennett, 2 Cra. (C. C.) 612, Fed. Cas. No. 1,311. Where a prisoner is held under a valid sentence and commitment, the illegali ty of a second sentence will not be inquired into on habeas corpus till the term under the first sentence has expired ; Ex parte Ry an, 17 Nev. 139, 28 Pac. 1040.
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 are bailable prior to the conviction of the offender, except "capital offences when the proof is evident or presumption great ;" Hurd, Hab. Corp. 430.
Recommitment after discharge. The act of 31 Car. II. prohibited, under the penalty of five hundred pounds, the reimprisoning 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 appear, or other court 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 pris oner on other and more perfect process, al though relating to the same criminal act; Ex parte Milburn, 9 Pet. (U. S.) 704, 9 L. Ed. 280; Byrd v. State, 2 Miss. 163.
See "The Story of the Habeas CorpuS" by Edward Jenks in 18 L. Q. Rev. 64 (2 Sel. Essays in Anglo-Amer. L. H. 531).