Chapter 27 - Habeas Corpus
CHAPTER 27 - HABEAS CORPUS
1-27-101. Petition to be under oath; contents.
(a) The petition for the writ of habeas corpus shall be swornto and shall state:
(i) The person for whom the writ is sought is restrained of hisliberty, by whom he is restrained and the place where he is restrained, statingthe names of the parties if known and if unknown, describing them with as muchparticularity as practicable;
(ii) The cause or reason for the restraint according to the bestinformation of the petitioner, and if it is by virtue of any legal process, acopy thereof must be annexed or a satisfactory reason presented for itsabsence;
(iii) The restraint is illegal;
(iv) The legality of the restraint has not been adjudged in aprior proceeding, of the same character, to the best knowledge and belief ofthe applicant, or if previously adjudged the facts of the prior proceeding witha copy of all the papers connected therewith or a satisfactory reason for theabsence thereof; and
(v) Whether petition for the writ has been made to and refusedby any court or judge, and if a petition has been made, a copy of the petitionwith the reason for the refusal appended or satisfactory reasons given for thefailure to do so.
1-27-102. Petition to be verified; presentation.
Thepetition shall be sworn to by the person confined or by someone in his behalf,and presented to a court or officer authorized to allow the writ.
1-27-103. Courts and judges allowing writ; service in any part ofstate.
Thewrit of habeas corpus may be allowed by the supreme or district court or by anyjudge of those courts. It may be served in any part of the state.
1-27-104. Petition to be made to nearest judge.
Petitionfor a writ shall be made to the court or judge most convenient in point ofdistance to the applicant. A more remote court or judge may refuse the writunless a sufficient reason is stated in the petition for not applying to themore convenient supreme or district court or judge.
1-27-105. Writ to be allowed if grounds sufficient; contents of writ.
(a) The writ shall be allowed if the petition shows asufficient ground for relief and is in accordance with the foregoingrequirements.
(b) The writ shall be directed to the person having custody ofor who is alleged to be unlawfully restraining the petitioner, and shallcommand such person to produce the petitioner in person before the court orjudge issuing the writ at the time and place specified in the writ. It shallfurther command such person to have with him the writ with his return thereonshowing his doings in response thereto.
1-27-106. Issuance of writ.
Whenthe writ is allowed by a court, it is to be issued by the clerk, but whenallowed by a judge he must issue the writ himself, subscribing his name theretowithout any seal.
1-27-107. Reasons to be assigned for disallowance.
Ifthe writ is disallowed, the court or judge shall cause the reasons of thedisallowance to be appended to the petition and returned to the person applyingfor the writ.
1-27-108. Penalty for wrongful disallowance.
Anyjudge, acting individually or as a member of a court, who wrongfully andwillfully refuses the allowance of the writ when properly applied for, shallforfeit to the party aggrieved the sum of one thousand dollars ($1,000.00).
1-27-109. Duty of court to issue writ without application in certaininstances.
Wheneverany court or judge authorized to grant this writ has evidence from a judicial proceedingbefore it that any person within the jurisdiction of the court or judge isillegally imprisoned or restrained, the court or judge shall issue the writ orcause it to be issued though no application has been made.
1-27-110. Service of writ.
Thewrit may be served by the sheriff or by any other person appointed by theissuing court or judge for that purpose. If served by any person other than thesheriff, he possesses the same power and is liable to the same penalty for anonperformance of his duty as though he were the sheriff.
1-27-111. Manner of service.
Serviceshall be made by leaving the original writ with the person to whom it isdirected as defendant and preserving a copy on which to make the return ofservice. If the defendant cannot be found, or if he does not have the plaintiffin custody, service may be made upon any person having the plaintiff in hiscustody in the same manner and with the same effect as though he had been nameddefendant therein.
1-27-112. Authorization to arrest defendant.
Ifthe defendant conceals himself or refuses admittance to the person attemptingto serve the writ, or if he attempts wrongfully to carry the plaintiff out ofthe county or state after service of the writ, the person attempting to servethe writ may arrest the defendant and bring him and the plaintiff promptlybefore the judge or court before whom the writ is made returnable.
1-27-113. Power of sheriff making arrest.
Inorder to make the arrest, the sheriff or other person having the writ possessesthe same power as a sheriff for the arrest of a person charged with a felony.
1-27-114. Plaintiff may be taken in custody by officer; power ofofficer.
Ifthe plaintiff is found and no one appears to have charge or custody of him, theperson having the writ may take him into custody and make return accordingly.To get possession of the plaintiff's person in such cases, he possesses thesame power as given by W.S. 1-27-113 for the arrest of the defendant.
1-27-115. Order for summary production of plaintiff.
Thecourt or judge to whom the petition for the writ is made may order the sheriffor any other person to bring the plaintiff promptly before the court or judgeif convinced that the plaintiff will suffer irreparable injury before he canobtain relief by the proceedings authorized.
1-27-116. Order for defendant's arrest for criminal offense.
Whenthe evidence is sufficient to justify the arrest of the defendant for acriminal offense committed in connection with the illegal restraint of thepetitioner, the order shall also order the arrest of the defendant.
1-27-117. Order for defendant's arrest for criminal offense; serviceof order of arrest.
Theofficer or person to whom the order is directed must execute it by bringing thedefendant, and the plaintiff if required, before the court or judge issuing it.The defendant shall make return to the writ of habeas corpus in the same manneras if the ordinary course had been pursued.
1-27-118. Examination, commitment or discharge of defendant.
Thedefendant may be examined, committed, bailed or discharged according to thenature of the case.
1-27-119. Errors in writ to be disregarded.
Thewrit of habeas corpus shall not be disobeyed for any defect of form ormisdescription of the plaintiff or defendant if enough is stated to show themeaning and intent of the writ.
1-27-120. Identity of defendant presumed.
Anyperson served with the writ is presumed to be the person to whom it isdirected, although it may be directed to him by a wrong name or description.
1-27-121. Contents of defendant's answer.
Thedefendant in his answer shall state simply and unequivocally whether he thenhas or at any time has had the plaintiff under his control and restraint, andif so, the reason therefor. If he has transferred him to another person, heshall state the fact, to whom and the time thereof, and the reason andauthority therefor. If he holds him by virtue of a legal process or writtenauthority, a copy thereof shall be annexed.
1-27-122. Petitioner may reply to answer; trial by court.
Thepetitioner may reply to the defendant's answer, and all issues joined thereonshall be tried by the judge or court.
1-27-123. Evidence before magistrate may be reviewed.
Thereply may deny the sufficiency of the testimony to justify the action of thecommitting magistrate, on the trial of which issue all written testimony beforethe magistrate may be given in evidence before the court or judge in connectionwith any other testimony which may then be produced.
1-27-124. Compelling attendance of witnesses; punishing for contempt.
Thejudge issuing the writ of habeas corpus or the judge before whom it is triedhas the same power as a court to compel the attendance of witnesses or topunish contempt of his authority.
1-27-125. Certain proceedings not reviewable.
Habeascorpus is not permissible to question the correctness of the action of a grandjury in finding a bill of indictment, or a petit jury in the trial of a causenor of a court or judge when acting within their jurisdiction and in a lawfulmanner.
1-27-126. When petitioner to be discharged.
Ifno sufficient legal cause of detention is shown, the petitioner must bedischarged.
1-27-127. Errors in commitment to be disregarded.
Althoughthe commitment of the petitioner was irregular, if the court or judge issatisfied from the evidence that he ought to be held to bail or committedeither for the offense charged or any other, an order may be made accordingly.
1-27-128. Petitioner may be committed or admitted to bail.
Thepetitioner may be committed, let to bail or his bail be mitigated or increasedas justice requires.
1-27-129. Custody of petitioner pendente lite.
Untilthe sufficiency of the cause of restraint is determined, the defendant mayretain the petitioner in his custody.
1-27-130. Presence of petitioner at trial; waiver.
Thepetitioner or his attorney may waive in writing his right to be present at thetrial, in which case the proceedings may be had in his absence. The writ insuch cases will be modified accordingly.
1-27-131. Refusal of officer to deliver copy of process.
Anyofficer refusing to deliver a copy of any legal process by which he detains thepetitioner in custody to any person who demands a copy, shall forfeit fivehundred dollars ($500.00) to the person detained.
1-27-132. Transfer, removal or concealment of person with intent toavoid service.
Whoever,having under his restraint any person for whose release a writ of habeas corpushas been issued or is being applied for, transfers that person to the custodyor control of another or conceals the place of his confinement or restraint, orremoves him from the jurisdiction of the court from which the writ is issued orsought, with the intent to avoid the service or effect of the writ, or whoeverknowingly aids or abets in the commission of any such offense, shall be finednot more than one thousand dollars ($1,000.00) or imprisoned not more thanninety (90) days, or both.
1-27-133. Papers to be filed; journal entry.
Whenthe proceedings are before a judge and the writ is allowed, all papers in thecase shall be filed with the clerk of the district court of the county whereinthe final proceedings are had, and the final order shall be entered by theclerk upon the journal as a vacation order.
1-27-134. Fees and costs not to be advanced.
Noofficer shall refuse to perform any of the duties required by law in habeascorpus proceedings because his fees are not paid in advance, but the judge orcourt to whom a petition is made may require the petitioner to give securityfor the payment of costs that may be taxed against him.