In Re Henderson, 23 P.2d 780

In Re Henderson

23 P.2d 780 | Cal. Ct. App. | 1933

THE COURT.

Petitioner has applied for a writ of habeas corpus, alleging that he is unlawfully detained and restrained of his liberty by the chief of police of the city and county of San Francisco, under the authority of a warrant of arrest issued out of the municipal court of said city and county upon the filing of a complaint therein on March 18, 1933, charging petitioner with having violated the provisions of a municipal ordinance. The ground urged for the *192 issuance of the writ is that the ordinance is unconstitutional.[1] Neither a copy of the ordinance nor of the complaint is presented as a part of or with the petition, and for that reason the petition is legally insufficient to authorize the issuance of the writ. (In re Crowley, 171 Cal. 58 [151 P. 739].)

[2] Moreover, as held in In re Gow, 139 Cal. 242 [73 P. 145], when a person accused of violating an ordinance has been allowed to go at large on his own recognizance he will not be permitted to test the validity of his subsequent restraint onhabeas corpus, where such restraint is invited and voluntarily submitted to before trial for that purpose only, and his nominal restraint remains such only so long as it is necessary to file a petition and procure an order for the writ. To the same effect isIn re Bocci, 84 Cal.App. 269 [257 P. 888]. In the present case, it appears from the statements made in applying for the writ, that after the criminal proceeding was instituted petitioner was released and has since been at liberty on his own recognizance, and that his present restraint was invited and submitted to voluntarily for the purpose of testing the constitutionality of said ordinance before trial on habeascorpus. Upon that ground, too, therefore, the writ should be denied. It is so ordered.