In re Be Hoe — 1 Cal. Dist. Ct. 204

Majority

p. 204

IN RE. BE HOE.

Sixth Judicial District Court,

September 1857.

Headnote

Illegal Abbest.

The failure to specify definitely and precisely the charge upon which the defendant is held to answer on attest, is fatal.

--—i-, for petitioner.

—:---, contra.

It appears from the return to the writ, that the defendant is held in custody by one Nathan Coon, a policeman, by virtue of a certain warrant of attachment issuing out of the County Court of the county of Sim Francisco, directed to the sheriff of Sacramento, attested by the clerk of the county of San Francisco.

By said writ of attachment, the said sheriff of Sacramento is commanded to-apprehend and attach the body of the defendant, to answer

p. 205

¿for evading the service of a certain writ of habeas corpus, or refusing to obey the same. There is no recital in the writ of any probable cause, supported by oath or affirmation.

The failure to specify definitely and precisely the charge which the defendant is held to answer, and the want of probable cause, supported by oath or affirmation, are defects in the process which would have been held fatal at anytime these hundred years. The 19th section of the Bill of Rights embodies this ancient- principle of. the English law.

The-detention of the defendant is, therefore, ilegal, and she must be discharged from custody.

Ordered accordingly.