CHAPTER 61.

HABEAS CORPUS.

AN ACT Regulating Proceedings on Habeas Corpus.

Be it Enacted by the Council and House of Representatives of the Territory of Wyoming:

SECTION 1. The petitions for the writ of habeas corpus must be what the pe sworn to and must state:

First, That the person on whose behalf it is sought is restrained of his liberty, and the person by whom, and the place where he is so restrained, mentioning the names of the parties, if known, and if unknown, describing them with as much particularity as practicable;

Second, The cause or pretense of such restraint, according to the best information of the applicant; and, if it be by virtue of any legal process, a copy thereof must be annexed, or a satisfactory reason presented for its absence;

Third, It must state that the restraint is illegal and wherein;

Fourth, That the legality of the imprisonment has not already been adjudged upon a prior proceeding of the same character, to the best knowledge and belief of the applicant, or if so previously adjudged upon, stating forth as fully as practicable, the facts of such previous hearing, with a copy of all the papers connected therewith, or a satisfactory reason for the absence of such copy or copies.

Fifth, It must also state whether application for the writ has been made to and refused by any court or judge, and if such application has been made, a copy of the petition in that case, with the reasons for the refusal thereto appended, must be produced, or satisfactory reasons given for the failure to do so.

tition must state.

to.

SEC. 2. The petition must be sworn to by the person confined, To be sworn or by some one in his behalf, and presented to some court or officer authorized to allow the writ.

low.

SEC. 3. The writ of habeas corpus may be allowed by the Who may alsupreme or district court, or by any judge of either of those courts. In such cases, it may be served in any part of the Territory.

ed by probate judge.

SEC. 4. It may also be allowed by any probate judge of the May be allow county where the applicant is held at the time of making his application, except when the commitment was made by order

of

Must be made to the nearest court.

When not allowed.

When allow'd

Form.

Who must issue.

Proceedings. when disal

one of the courts or officers mentioned in the preceding section; but when allowed by the probate court, it is valid only within the limits of county where issued.

SEC. 5. Application for this writ, when made to the supreme or district courts, or to either of the judges thereof, must be made to the court or judge most convenient in point of distance to the applicant, and the more remote court or judge, if applied to for the writ, may refuse the same unless a sufficient reason be stated in the petition, for not making the application to the more convenient supreme or district court or a judge thereof.

SEC. 6. If, from the showing of the petitioner, the plaintiff would not be entitled to any relief, the court or judge may refuse to allow the writ.

SEC. 7. But if the petition show a sufficient ground for relief, and is in accordance with the foregoing requirements, the writ shall be allowed, and may be substantially as follows:

The Territory of Wyoming: To the sheriff of, &c., (or to A. B., as the case may be,) you are hereby commanded to have the body of C. D., by you unlawfully detained as is alleged, before the court, or before me, or before E. F., judge, &c., (as the case may be,) at day of 18—— (or immediately after being served with the writ,) to be dealt with according to law, and have you there and then this writ with a return thereon of your doings in the premises.

on the

SEC. 8. When the writ is allowed by a court, it is to be issued by the clerk, but when allowed by a judge he must issue the writ himself, subscribing his name thereto without any seal.

SEC. 9. If the writ is disallowed, the court or judge shall lowed. cause the reasons of said disallowance to be appended to the petition, and returned to the person applying for the writ.

Forfeiture.

Writ to be is

sued without

SEC. 10. Any judge, whether acting individually or as a member of a court, who wrongfully and wilfully refused such allowance of the writ when properly applied for, shall forfeit to the party aggrieved the sum of one thousand dollars.

SEC. 11. Whenever any court or judge authorized to grant this application. writ, has evidence from a judicial proceeding before them, that any person within the jurisdiction of such court or officer, is illegally imprisoned, or restrained of his liberty, it is the duty of such court or judge to issue or cause to be issued, the writ as aforesaid, though no application be made therefor.

Who may serve writ.

Service, how made.

When defend

SEC. 12. The writ may be served by the sheriff or by any other person appointed for that purpose by the court, or judge by whom it is issued or allowed. If served by any other than the sheriff, he possesses the same power, and is liable to the same penalty for a non-performance of his duty as though he were the sheriff

SEC. 13. The proper mode of service is by leaving the original writ with the defendant, and preserving a copy thereof on which to make the return of service.

SEC. 14. If the defendant cannot be found, or if he have not the ant not found. plaintiff in custody, the service may be made upon any person hav

ing the plaintiff in his custody in the same manner and with the same effect as, though he had been made defendant therein.

conceals

SEC. 15. If the defendant conceal himself, or refuse admittance When defendto the person attempting to serve the writ, or if he attempt himself, etc. wrongfully to carry the plaintiff out of the county or Territory after the service of the writ, as aforesaid, the sheriff or the person who is attempting to serve, or who has served the writ as above contemplated, is authorized to arrest the defendant, and bring him, together with the plaintiff, forthwith before the officers or court before whom the writ is made returnable.

ift.

SEC. 16. In order to make such arrest, the sheriff or other Power of sher person having the writ, possesses the same power as is given to a sheriff for the arrest of a person charged with a felony.

taken into

SEC. 17. If the plaintiff can be found, and if no one appear to Plaintiff to be have the charge or custody of him, the person having the writ custody, when may take him into custody, and make return accordingly. And to get possession of the plaintiff's person, in such cases, he possesses the same power as is given by the preceding section for the arrest of the defendant.

to be issued.

SEC. 18. The court or judge to whom the application for the Precept, when writ is made, if satisfied that the plaintiff would suffer any irreparable injury before he could be relieved by the proceedings as above authorized, may issue a precept to the sheriff or any other person selected instead, commanding him to bring the plaintiff before such court or judge forthwith.

SEC. 19. When the evidence aforesaid is further sufficient to Arrest of dejustify the arrest of the defendant for a criminal offense committed fendant. in connection with the illegal detention of the plaintiff, the precept must also contain an order for the arrest of the defendant.

made.

SEC. 20. The officer or person to whom the precept is directed, Return, how must execute the same by bringing the defendant, and also the plaintiff, if required, before the court or judge issuing it, and thereupon the defendant must make return to the writ of habeas corpus in the same manner as if the ordinary course had been pursued.

SEC. 21. The defendant may also be examined and committed, Defendant exor bailed or discharged, according to the nature of the case.

amined.

SEC. 22. The writ of habeas corpus must not be disobeyed for Writ not to be any defect of form or misdescription of the plaintiff or defendant, disobeyed for provided enough is stated to show the meaning and intent of the

writ.

defect of form.

SEC. 23. Any person served with the writ is to be presumed to Wrong name. be the person to whom it is directed, although it may be directed to him by a wrong name or description.

appear.

SEC. 24. Service being made in any of the modes hereinbefore Defendant to provided, the defendant must appear at the proper time and answer the said petition.

SEC. 25. He must also bring up the body of the plaintiff, or Bring body of show good cause for not doing so.

plaintiff.

SEC. 26. A wilful failure to comply with the above requisitions, A failure to renders the defendant liable to be attached for a contempt, and to comply. be imprisoned until a compliance is obtained, and also subjects

Attachment, how served.

attorney noti

fied.

him to the forfeiture of one thousand dollars to the party thereby aggrieved.

SEC. 27. Such attachment may be served by the sheriff or any other person thereto authorized by the judge, who shall also be empowered to bring up the body of the plaintiff forthwith, and has for this purpose the same powers as are above conferred in similar cases.

Prosecuting SEC. 28. The court or officer allowing the writ must cause the prosecuting attorney of the proper county to be informed of the issuing of the writ, and of the time and place, when and where it is made returnable, except when the court or officer may deem it

Answers.

Reasons transfer.

for

Copy of pro

cess.

unnecessary.

SEC. 29. The defendant in his answer must state simply and unequivocally, whether he then has, or at any time has had the plaintiff under his control and restraint, and if so, the cause thereof.

SEC. 30. If he has transferred him to another person, he must state the fact, and to whom, and the time thereof, as well as the reason and authority therefor.

SEC. 31. If he holds him by virtue of a legal process or written authority, a copy thereof must be annexed.

Demur or re- SEC. 32. The plaintiff may demur or reply to the defendant's answer, and all issues joined thereon shall be tried by the judge

.ply.

When discharged.

Order of commitment on

made.

or court.

SEC. 33. Such replication, except when the hearing is before the judge of probate of the county, may deny the sufficiency of the testimony to justify the action of the committing magistrate, on the trial of which issue all written testimony before such magistrate may be given in evidence before the court or judge in connection with any other testimony which may then be produced.

SEC. 34. But it is not permissible to question the correctness of the action of a grand jury in finding a bill of indictment, or of the petit jury in the trial of a cause, nor of a court or judge when acting within their legitimate province, and in a lawful

manner.

SEC. 35. If no sufficient legal cause of detention is shown, the plaintiff must be discharged.

SEC. 36. Although the commitment of the plaintiff may have when been irregular, still if the court or judge is satisfied from the evidence before them, that he ought to be held to bail or committed, either for the offense charged, or any other, the order may be made acccordingly.

Plaintiff committed, etc.

retain plaintiff.

SEC. 37. The plaintiff may, also, in any case be committed, let to bail, or his bail be mitigated or increased, as justice may require.

Defend'nt m'y SEC. 38. Until the sufficiency of the cause of restraint is determined, the defendant may retain the plaintiff in his custody, and may use all necessary and proper means for that purpose.

Waiver of right to be

SEC. 39. The plaintiff, in writing, or his attorney, may waive present. his right to be present at the trial, in which case the proceedings may be had in his absence; the writ will in such cases be modified accordingly.

SEC. 40. Disobedience to any order of discharge subjects the Contempt. defendant to attachment for contempt, and, also, to the forfeiture of one thousand dollars to the party aggrieved, besides all damages sustained by him in consequence of such disobedience.

lude service of

SEC. 41. If the defendant attempt to elude the service of the Attempt to ewrit of habeas corpus, or to avoid the effect thereof by transferring writ. the plaintiff to another, or by concealing him, he shall, on conviction, be imprisoned in the penitentiary or county jail not more than one year, and fined not exceeding one hundred dollars; and any person knowingly aiding or abetting in any such act, shall be subject to the like punishment.

SEC. 42. Any officer refusing to deliver a copy of any legal Forfeiture. process by which he detains the plaintiff in custody, to any person' who demands such copy, shall forfeit five hundred dollars to the person so detained.

SEC. 43. When the proceedings are before a judge, (except Papers when the writ is refused), all the papers in the case, including his with clerk.

final order, shall be filed with the clerk of the district court of the county wherein the final proceedings were had, and a brief memorandum thereof shall be entered by the clerk upon his judgment docket.

fled

SEC. 44. No officer shall refuse to perform any of the duties Fees not paid required by this chapter for the reason that his fees are not paid in advance, in advance, but the judge or court, to whom application for said writ is made, may, in his or its discretion, require the applicant to give security for the payment of such costs as may be taxed against such applicant.

SEC. 45. This act to take effect and be in force on and after the first day of January, one thousand eight hundred and seventy.

Approved, 2nd December, 1869.