32-22 Habeas Corpus

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CHAPTER 32-22HABEAS CORPUS32-22-01. Persons restrained may prosecute the writ. Every person imprisoned orrestrained of the person's liberty under any pretense whatever may prosecute a writ of habeas corpus to inquire into the cause of such imprisonment or restraint and thereby, except in the cases specified in section 32-22-02, obtain relief from such imprisonment or restraint if it is unlawful.32-22-02. Who not entitled to relief. The person in whose behalf the application ismade is not entitled to relief from imprisonment or restraint under a writ of habeas corpus, if the time during which such person may be detained legally in custody has not expired, whenever it appears:1.That the person is detained in custody by virtue of process issued by any court or judge of the United States in a case where such court or judge has exclusive jurisdiction; or2.Except as provided in section 32-22-17, that the person is detained in custody by virtue of the final order or judgment of any competent court of criminal jurisdiction or of any process issued upon such order or judgment.32-22-03. Application for writ - Contents - Verification. Application for the writ mustbe made by petition signed either by the person for whose relief it is intended or by some person in that person's behalf, and must specify:1.That the person in whose behalf the writ is applied for is imprisoned or restrained of the person's liberty, the officer or person by whom the person is so confined or restrained, and the place where, naming all the parties if they are known, or describing them if they are not known.2.The cause or pretense of such confinement or restraint according to the knowledge or belief of the party verifying the petition.3.If the confinement or restraint is by virtue of any warrant, order, or process, a copy thereof shall be annexed, or it shall be averred because such person was removed or concealed before application, a demand of such copy could not be made, or that such demand was made and the legal fees therefor tendered to the officer or person having such person in custody, and that such copy was refused.4.If the imprisonment is alleged to be illegal, the petition shall state in what the illegality consists.The petition must be verified by the oath or affirmation of the person making the application.32-22-04. By what court application granted. The writ of habeas corpus must begranted, issued, and made returnable as hereinafter stated:1.The writ must be granted by the supreme court, or any judge thereof, upon petition by or on behalf of any person restrained of the person's liberty within this state. When granted by the court, it, in all cases, shall be issued out of and under the seal of the supreme court, and may be made returnable, either before the supreme court, or before the district court or any judge of the district court; or2.The writ may be granted, issued, and determined by the district courts and the judges thereof upon petition by or on behalf of any person restrained of the person's liberty in their respective districts.Page No. 1When application is made to the supreme court, or to a judge thereof, proof by the oath of the person applying or other sufficient evidence shall be required that the judge of the district court having jurisdiction by the provisions of subsection 2 is absent from the judge's district or has refused to grant such writ, or for some cause to be specially set forth, is incapable of acting, and if such proof is not produced the application shall be denied.32-22-05. When court must grant the writ. The court authorized to grant the writ towhom a petition therefor is presented, if it appears that the writ ought to issue, must grant the same without delay, and the writ shall not be denied for any informality in the petition or for any want of matters of substance, if the same can be supplied, and the court to whom application is made, must point out the matters wanting and direct the manner of supplying the same.32-22-06. Application to supreme court for writ of habeas corpus. When, uponapplication to the supreme court for a writ of habeas corpus, it is apparent that no necessity exists for its immediate issuance, and a district court has entertained an application for the writ, and, upon hearing, quashed it, the supreme court will require all the papers, including the application and supporting affidavits, the return and supporting affidavits, and the order of such lower court, to accompany the application made to said court.In emergency cases, theforegoing requirement may be waived.32-22-07. Direction of writ. The writ must be directed to the person having custody ofor restraining the person on whose behalf the application is made, and must command that person to have the person in custody or restraint personally appear before the court before whom the writ is returnable, at a place therein specified, immediately or at some specified time, regard being had to the circumstances and the distance to be traveled.32-22-08. Writ of habeas corpus - Form. Every writ of habeas corpus issued under theprovisions of this chapter shall be in substantially the following form: State of North Dakota)) ss.County of _______________)The state of North Dakota to the sheriff of _________ etc. (or to _________):You are hereby commanded to have _______________ by you imprisoned anddetained, as is alleged, together with the time and cause of such imprisonment and detention, by whatever name the said _______________ shall be called or charged, before _______________, judge of the district court, (or before the district or supreme court,asthecasemaybe),at_______________(namingtheplace),on_______________ (naming the date), (or immediately upon the receipt of this writ), to do and receivewhatshallthenandtherebeconsideredconcerningthesaid_______________, and have you then and there this writ.Witness, etc.Such writ must be endorsed "By the Habeas Corpus Act", and if issued by the court, it shall be under the seal of the court, and if by the judge, it shall be under the judge's hand.32-22-09. Manner of serving the writ. Whenever the writ is directed to the sheriff orother ministerial officer of the court out of which it is issued, it must be delivered by the clerk or by such person as it may be entrusted to, without delay, as other writs are delivered to such sheriff or other officer for service, or it may be left with the jailer, keeper, or other person under such sheriff or other officer in charge of and at the jail or place where the person seeking the writ may be imprisoned or restrained. If it is directed to any other person, it may be delivered to the sheriff or sheriff's deputy and be by the sheriff or sheriff's deputy served upon such person by delivering the same to such person without delay. If the person to whom the writ is directed cannot be found or refuses admittance to the officer or person serving or delivering such writ, it may be served or delivered by leaving it at the residence of the person to whom it is directed, or by affixing it to some conspicuous place on the outside either of that person's dwelling house or ofPage No. 2the place where the party is confined or under restraint. In any case the court issuing the writ, at its discretion, may authorize any person to serve and deliver it by an entry signed by the judge thereon to the following effect: "I hereby authorize _______________ to serve the within writ", and service made by such person in the manner designated in this section shall be due and lawful service.32-22-10. Penalty if officer refuses to execute and return writ. If the person to whomthe writ is directed refuses, after service, to obey the same, the court, upon affidavit stating such facts, must issue an attachment against such person, directed to the sheriff or coroner, commanding the sheriff or coroner forthwith to arrest such person and bring such person immediately before such court, and upon being so brought that person must be committed to the jail of the county until that person makes due return to such writ or is otherwise legally discharged.The person disobeying such writ also shall forfeit to the person imprisoned orrestrained a sum not exceeding five hundred dollars to be recovered in a civil action by the person restrained. If the person disobeying the writ is an officer, that officer shall be incapable of holding or executing that office.32-22-11. What the return must set forth. The person upon whom the writ is servedmust state in the person's return, plainly and unequivocally:1.Whether that person has or has not the party in custody or under power or restraint.2.If that person has the party in custody or power or under restraint, that person must state the authority and cause of such imprisonment or restraint.3.If the party is detained by virtue of any writ, warrant, or other written authority, a copy thereof must be annexed to the return and the original produced and exhibited to the court on the hearing of such return.4.If the person upon whom the writ is served had the party in the person's custody or power or under the person's restraint, at any time prior or subsequent to the date of the writ of habeas corpus, but has transferred such custody or restraint to another, the return must state particularly to whom, at what time and place, for what cause, and by what authority such transfer took place.5.The return must be signed by the person making the same, and, except when such person is a sworn public officer and makes such return in an official capacity, it must be verified by the officer's oath or affirmation.32-22-12. Party restrained must be brought into court - Exception. The person towhom the writ is directed, if it is served, must bring the party in custody or under restraint, according to the command of the writ, except in cases specified in section 32-22-13.32-22-13. When party need not be brought. When from sickness or infirmity of theperson directed to be produced such person cannot be brought before the court without danger, the person in whose power or custody such person is may state that fact in the return to the writ, verifying the same by affidavit. If the court is satisfied of the truth of such return and the return to the writ is otherwise sufficient, the court may proceed to decide on such return and to dispose of the matter as if such party had been produced on the writ, or the hearing thereof may be adjourned until such party can be produced.32-22-14. When hearing must be had. The court before whom the writ is returned,immediately after the return or within five days thereafter, must proceed to hear and examine the return, and such other matters as may be properly submitted for its consideration.32-22-15. Return may be controverted - Proofs. The party brought before the court onthe return of the writ may deny or controvert any of the material facts or matters set forth in the return, or except to the sufficiency thereof, or allege any fact to show either that the imprisonment or detention is unlawful or that the party is entitled to be discharged. The court thereupon mustPage No. 3proceed in a summary way to hear such proof as may be produced against such imprisonment or detention, or in favor of the same, and to dispose of such party as the justice of the case may require, and has full power and authority to require and compel the attendance of witnesses, by process of subpoena and attachment, and to do and perform all other acts and things necessary to a full and fair hearing and determination of the case. The court may allow the return to be amended according to the facts of the case, whenever it may be deemed necessary.32-22-16. When person restrained must be discharged. If no legal cause is shownfor the imprisonment or restraint or for the continuation thereof, the court must discharge the party from the custody or restraint under which the party is held.32-22-17. Causes for discharge of person restrained. If it appears on the return of thewrit that the party is in custody by virtue of process from any court of this state, or any judge or officer thereof, such person may be discharged in any of the following cases, subject to the restrictions of section 32-22-02:1.When the jurisdiction of such court or officer has been exceeded.2.When the imprisonment was at first lawful, but by some act, omission, or event which has taken place afterward, the party has become entitled to a discharge.3.When the process is defective in some matter of substance required by law rendering such process void.4.When the process, though regular in form, has been issued in a case not allowed by law.5.When the person having the custody of the party is not the person allowed by law to detain the party.6.When the process is not authorized by any order or judgment of any court nor by any provisions of law.7.When a party has been committed on a criminal charge without reasonable or probable cause.8.When the process appears to have been obtained by false pretense or bribery.32-22-18. Informal commitment from district judge. If the person is committed toprison, or is in custody of an officer on a criminal charge, by virtue of a warrant of commitment of a district judge, the person must not be discharged on the ground of any mere defect of form in the warrant of commitment.32-22-19. Procedure when person appears to be guilty. If it appears to the court, byaffidavit or otherwise, or upon inspection of the process or warrant of commitment and proceedings as may be shown to the court, that the party is guilty of a criminal offense or ought not to be discharged, such court, although the charge is defectively or not substantially set forth in such process or warrant of commitment, must cause the complainant or other necessary witness to be subpoenaed to attend at such time as ordered, to testify before the court, and upon the examination the judge may discharge such party, admit the party to bail if the offense is bailable, or recommit the party to custody, as may be just and legal.32-22-20. Habeas corpus to give bail. Whenever a person is imprisoned or detained incustody on a criminal charge, for want of bail, such person is entitled to a writ of habeas corpus for the purpose of giving bail, upon averring that fact in such person's petition, without alleging that the person is confined illegally.Any judge in or out of the court in which the judge isauthorized to act may take an undertaking of bail from any person who has been committed on a criminal charge, when brought before the judge on a writ of habeas corpus, as in other cases, if the offense is bailable, and file the undertaking in the proper court.Page No. 432-22-21. Procedure when person not entitled to discharge. If a party brought beforethe court on the return of the writ is not entitled to a discharge, and is not admitted to bail or bailed when allowable, the court must remand the party to custody, or place the party under the restraint from which the party was taken, if the person under whose custody or restraint the party was is legally entitled thereto.32-22-22. Prisoner may be ordered to custody of proper officer. In cases in whichany party is held under illegal restraint or custody, and any other person is entitled to the custody or restraint of such party, the court may order such party to be committed to the custody or restraint of such person as by law is entitled thereto.32-22-23. How person disposed of before judgment. Until judgment is given on thereturn, the court before whom any party may be brought on such writ may commit the party to the sheriff of the county or place the party in such care or under such custody as the party's age or circumstances may require.32-22-24. When notice of hearing must be given state's attorney. When it appearsthat the person in whose behalf a writ of habeas corpus is issued is held upon a criminal charge of any kind, notice of the time and place of the hearing upon the return shall be given to the state's attorney of the county where the offense arose if the person is within the state's attorney's county. In other cases, like notice shall be given to any person interested in continuing the custody or restraint of the party asking aid of such writ.32-22-25. Person taken out of county - Expenses. Whenever the officer or person towhom a writ of habeas corpus is directed and delivered is required thereby to make return and take the person in whose behalf the writ is issued into a county other than the county in which such person is imprisoned or restrained, the court awarding the writ, at the court's discretion, may ascertain, and by an entry thereon specifying the amount, but not exceeding fifteen cents per mile, may require the payment or tender, at the time of delivering the writ, of the charges of obeying the same. However, in no case when an entry is not made can the payment or tender of such charges be demanded before the return of the writ in accordance with its direction.32-22-26. Writ must not be disobeyed. No writ of habeas corpus can be disobeyed fordefect of form, if it sufficiently appears therefrom in whose restraint the party imprisoned or restrained is, the officer or person detaining the party, and the court before whom the party is to be brought.32-22-27. When person discharged may be arrested again. No person who has beendischarged by the order of the court upon habeas corpus can be imprisoned again or kept in custody for the same cause, except in any of the following cases:1.If the person has been discharged from custody on a criminal charge and is committed afterwards for the same offense, by legal order or process.2.If, after a discharge for defect of proof, or for any defect of the process, warrant, or commitment in a criminal action, the accused is arrested again on sufficient proof and committed by legal process for the same offense.3.If in a civil action the party has been discharged for any illegality in the order, judgment, or process and afterwards is imprisoned by legal process for the same claim for relief.32-22-28. How obedience to order of discharge enforced. Obedience to an order forthe discharge of any person, granted pursuant to the provisions of this chapter, may be enforced by the court or judge issuing such writ, or granting such order, by attachment, in the same manner as hereinbefore provided for a neglect to make a return to a writ of habeas corpus, and the person guilty of such disobedience shall forfeit to the party aggrieved five hundred dollars, in addition to any special damages such party may have sustained.Page No. 532-22-29. Person restrained in danger of being taken out of jurisdiction - Warrant.When it appears to any court authorized by law to issue the writ of habeas corpus that anyone is illegally held in custody, confinement, or restraint, and that there is reason to believe that the person will be carried out of the jurisdiction of the court, or will suffer some irreparable injury before compliance with the writ of habeas corpus can be enforced, the court may cause a warrant to be issued reciting the facts and directed to the sheriff or coroner of the county, commanding the officer to take the person thus held in custody, confinement, or restraint, and forthwith bring that person before the court to be dealt with according to law. The court also may insert in the warrant a command for the arrest of the person charged with the illegal detention and restraint.32-22-30. Execution of warrant. The officer to whom such warrant is delivered mustexecute it by bringing the person therein named before the court who directed the issuing of such warrant, but if such warrant is issued by the supreme court or a judge thereof, upon the return of the warrant, the hearing and decision of the matter may be ordered by such court or judge to be had before the district court of the proper county or the judge thereof.32-22-31. Return to warrant - Procedure. The person alleged to have such party underillegal confinement or restraint may make return to such warrant, as in case of a writ of habeas corpus, and the same may be denied, and like allegations, proofs, and trial thereupon may be had as upon a return to a writ of habeas corpus.32-22-32. When person must be discharged. If the party is held under illegal custodyor restraint, the party must be discharged or be restored to the care or custody of the person entitled thereto.32-22-33. When writ may be served. Any writ or process authorized by this chaptermay be issued and served on any day or at any time.32-22-34.Accused liberated for want of prosecution.If any person shall becommitted for a criminal or supposed criminal matter and not admitted to bail, and shall not be tried on or before the second term of the court having jurisdiction of the offense, the prisoner shall be set at liberty by the court, unless the delay shall happen on the application of the prisoner. If such court at the second term shall be satisfied that due exertions have been made to procure the evidence for and on behalf of the state, and that there are reasonable grounds to believe that such evidence may be procured at the third term, it shall have power to continue such case until the third term. If any such prisoner shall have been admitted to bail for a crime other than a capital offense, the court may continue the trial of said cause to a third term, if it shall appear by oath or affirmation that the witnesses for the state are absent, such witnesses being mentioned by name, and the court shown wherein their testimony is material.32-22-35. Writ not allowed to delay trial. To prevent any person from avoiding ordelaying that person's trial, it shall not be lawful to remove any prisoner on habeas corpus under this chapter out of the county in which the prisoner is confined, within fifteen days next preceding the term of the court at which such person ought to be tried, unless it is to convey the prisoner into the county where the offense with which the prisoner stands charged properly is cognizable.32-22-36. Prisoners may not be removed from one prison to another - Exceptions.Repealed by S.L. 1997, ch. 114, </DIV></DIV></DIV> </DIV>  <DIV></DIV> <DIV></DIV> <DIV></DIV> <DIV></DIV>  <DIV id=footer> <DIV class=container> Copyright © 2012-2022 Laws9.Com All rights reserved.  <A href="/contactus.html">Contact Us</A> | <A href="/aboutus.html">About Us</A> | <A href="/terms.html">Terms</A> | <A href="/privacy.html">Privacy</A> </DIV> </DIV> </BODY></HTML>

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32-22 Habeas Corpus