Opinion
No. 4366.
Submitted September 27, 1954.
Decided October 29, 1954.
The authority of the Supreme Court to issue writs of habeas corpus will not ordinarily be exercised if the Superior Court having concurring jurisdiction has the opportunity to do so.
A petition for a writ of habeas corpus alleging that in the criminal proceedings the petitioner was without the "help of counsel" was treated as an appeal from a previous denial of a petition for a like writ in the Superior Court and the judgment therein was affirmed where the record clearly showed that petitioner was represented by counsel appointed by the court and paid for by the county.
The denial of a petition for a writ of habeas corpus in the Superior Court is not res judicata of a petition for such a writ filed in the Supreme Court but repeated applications for such writ introducing no new facts material to the issue will ordinarily be summarily disposed of.
PETITION, for a writ of habeas corpus filed in the Supreme Court to obtain the release of the petitioner who is confined in the state prison on his plea of guilty to the crime of incest. R. L., c. 449, s. 7. The petitioner alleges that he was denied the "help of counsel" and that "he was ignorant of his right of counsel."
Leon P. LaBelle, pro se.
Warren E. Waters, Deputy Attorney General, filed motion to dismiss.
Revised Laws, chapter 369, section 2, gives the Supreme Court authority to issue writs of habeas corpus and other extraordinary writs but this original authority is not ordinarily exercised if the Superior Court has the opportunity to exercise concurrent jurisdiction. The "original authority of this court will be exercised only sparingly and in exceptional cases where its exercise by the Superior Court will cause undue hardship in delay to meet an emergency or is a mere formality. . . ." Nelson v. Morse, 91 N.H. 177, 178.
Treating the petition as an appeal from a previous denial of a petition for a writ of habeas corpus in the Superior Court (Wheeler, C.J.) in January, 1954, the record of that hearing clearly indicates that the petitioner was represented in the criminal proceeding by counsel appointed by the Court and paid for by the county. On that record the denial of the petition was proper. Petition of Gobin, 95 N.H. 532. While the denial of the petition in the Superior Court is not res judicata of the petition filed in this court (Fitzgibbons v. Hancock, 97 N.H. 162, 166), "repeated applications for a writ of habeas corpus introducing no new facts material to the issue will ordinarily be summarily disposed of." Petition of Moebus, 74 N.H. 213; Gobin v. Hancock, 96 N.H. 450, 451. To the extent that the petition is in the nature of an appeal, it is without merit and the order is
Petition dismissed.