Opinion
March 7, 1952.
Appeal from the Jefferson Circuit Court, Criminal Branch, First Division, Jefferson County, Loraine Mix, J.
Robert W. Zollinger, Louisville, for appellant.
Frank Ropke, Lawrence G. Duncan, Louisville, A.E. Funk, Atty. Gen., for appellee.
This appeal is from a judgment denying the petition for a writ of habeas corpus. Criminal Code of Practice, 429-1. At the time the petition was filed petitioner was confined in the Jefferson County jail. The Commonwealth has filed motion to dismiss the appeal, supported by certified statement of the clerk of the court that the petitioner is now at liberty under bond to appear for trial.
It is elementary that the writ of habeas corpus is appropriate only in those cases where there is an actual or physical restraint of the person. The rule is stated in 14 A.L.R. 344: "It is well settled that a person out on bail is not so restrained of his liberty as to be entitled to a writ of habeas corpus. An actual or physical restraint is required in order that such a writ may issue."
Also see Ex parte Ford, 160 Cal. 334, 116 P. 757, 35 L.R.A., N.S., 882; Johnson Y. Hoy, 227 U.S. 245, 33 S.Ct. 240, 57 L.Ed. 497; Ex parte Powell, 191 Wn. 152, 70 P.2d 778.
The appeal must be dismissed and it is so ordered.