290 P. 589 | Cal. Ct. App. | 1930
This is an application for a writ of habeas corpus.
Heretofore the petitioner filed an application in which he alleged that he was being illegally held in jail and restrained of his liberty. Thereafter this court directed that a writ issue and made said writ returnable *690
on the fourteenth day of July, 1930. Later the sheriff of Alameda County duly made his return in which he set forth that the petitioner was held by him pursuant to a judgment of the city court of the city of San Leandro and attached to his said return a copy of said judgment. To that return the petitioner has filed no answer. The petitioner claims that a complaint was filed in the city court of San Leandro; that a warrant was issued; that he was adjudged guilty, and that he was sentenced to sixty days in the county jail of Alameda. [1] The illegality of his restraint consists of the claim that the complaint was not sworn to before a justice of the peace. (Pen. Code, sec. 1426.) To this claim there are two complete answers. In the first place, as the petitioner did not answer the return and set forth the irregularity complained of, this court does not know what the facts are. Upon the issuance of the writ the petition becamefunctus officio. (In re Collins,
The writ is denied and the petitioner is remanded.
Nourse, P.J., and Spence, J., concurred.
A petition for a rehearing of this cause was denied by the District Court of Appeal on August 29, 1930.