Opinion
No. 21281
Decided January 31, 1966.
From a denial of his petition for a writ of habeas corpus, petitioner brings error.
Affirmed
1. HABEAS CORPUS. — Warrant — Affidavit — Fugitive — Bigamy — Determination — Denial — Hearing. Where no warrant of commitment or affidavit in lieu thereof was attached to petition for writ of habeas corpus by petitioner a fugitive from foreign state for crime of bigamy and no writ was ever issued and no return ever filed, but trial court, over objection, proceeded to a hearing and final determination upon petition itself, held, trial court was correct in denying petition, but it should have done so summarily and without a hearing.
2. Warrant — Affidavit — Custodian — Validity — Action. Petition for writ of habeas corpus which is not accompanied by copy of warrant of commitment or an affidavit stating that such has been requested of the custodian and refused by him has no validity and cannot be acted upon.
3. Petition — Proper Form — Allegations — Writ — Return. If petition is in proper form and shows on its face that relief must be granted providing allegations contained therein are true, then court must issue writ; return would then be required to be made by person to whom writ is issued; issue is then made upon answer and return and petition then becomes functus officio.
Error to the District Court, City and County of Denver, Hon. George V. Kempf, Judge.
Epstein, Epstein Lozow, Alex Stephen Keller, for plaintiff in error.
Duke W. Dunbar, Attorney General, Frank E. Hickey, Deputy, John P. Moore, Assistant, for defendant in error.
Plaintiff in error, George James McNamara, hereinafter called McNamara, by writ of error seeks to reverse a judgment of the district court denying his petition for a writ of habeas corpus.
McNamara was charged in an information with being a fugitive from justice from the State of Iowa for the crime of bigamy. Thereafter, he filed his petition for writ of habeas corpus alleging that he was not a fugitive because he was not in Iowa at the time of the alleged offense. No warrant of commitment, or affidavit in lieu thereof, was attached to the petition.
No writ was ever issued, nor was any return as such ever filed by the respondents named in the petition. Instead, the trial court, over the objection of McNamara, proceeded to a hearing and final determination upon the petition itself. As a result of this hearing it denied the petition.
[1, 2] The trial court was correct in denying the petition, but it should have done so summarily and without a hearing. Under the settled law of this state, a petition which is not accompanied by a copy of the warrant of commitment or an affidavit stating that such has been requested of the custodian and refused by him has no validity and cannot be acted upon. Wright v. Tinsley, 148 Colo. 258, 365 P.2d 691.
We would again point out that the procedure of holding a hearing on a petition for habeas corpus is completely foreign to the law of this state. If a petition is in proper form and shows on its face that relief must be granted, providing the allegations contained therein are true, then the court must issue the writ. A return would then be required to be made by the person to whom the writ is issued. The issue is made upon the answer and return and the petition then becomes functus officio. This is the statutory procedure which is mandatory upon all courts of this state. Struble v. Hicks, 123 Colo. 16, 224 P.2d 932.
The judgment is affirmed.