In Re Martha

VAN DYKE, P. J.

Respondent, Jose Martha, having been convicted and sentenced to jail by a judgment made and entered in the Justice’s Court of Colusa Judicial District, Colusa County, California, petitioned the Superior Court of

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Colusa County for a writ of habeas corpus. The writ was issued and after proceedings held the court declared that respondent was unlawfully detained under count II of the complaint by which he had been proceeded against. The court declared that his detention under count I of that complaint, however, was valid and remanded him to serve out the balance of his term thereunder. From that part of the order declaring that respondent’s detention under said count II of the complaint was unlawful the People have appealed.

The return to the writ showed that respondent was being held in the Colusa County jail by the sheriff of that county and that the justification for this restraint was the following: That he had been arrested on May 18, 1953, pursuant to a warrant of arrest which was attached to the return; that on that day he had entered a plea of guilty before the judge of the Justice Court of Colusa Judicial District to charged offenses of disturbing the peace (violation of Pen. Code, § 415) and battery (violation of Pen. Code, § 242); that he had been sentenced to serve three months in the county jail upon the peace disturbance charge, to serve six months in said jail upon the battery charge, and that for the latter offense he had been fined in the sum of $250 with directions that unless the fine was paid he be detained one day for each $2.00 of said fine. It does not appear that any exception was taken to the legal sufficiency of the return nor that any traverse thereto was filed. Before treating of the contentions of appellant we think it well to discuss briefly the procedural requirements as laid down in the Penal Code and as declared in the case law.

‘ ‘ The action which the petitioners may take upon the filing of the return is specified in section 1484 of the Penal Code. They 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 facts to show either that their imprisonment or detention is unlawful, or that they are entitled to their discharge. The section further provides that the court or judge must thereupon proceed in a summary way to hear such proof as may be produced against the imprisonment dr detention, or in favor of the same, and to dispose of the party as the justice of the ease requires, with full power and authority to require and compel the attendance of witnesses, and to do'and perform all other acts and things necessary to a full and fair hearing and determination of the case.”