In Re Bagwell

[419]

PULLEN, P. J.

This is a petition filed by Bagwell for a writ of

habeas corpus ad testificandum.

While petitioner Bagwell was confined in a cell in the San Joaquin county jail with one William Lewis, a quarrel arose between the two, during which Lewis struck Bagwell, inflicting the injury hereinafter referred to. Bagwell, after being committed to San Quentin prison, filed a civil suit against the sheriff of the county of San Joaquin for the injury alleged to have been caused by his fight with Lewis, upon the theory the sheriff was guilty of negligence in confining Lewis, whom petitioner alleged was an habitual criminal with a vicious, dangerous and violent character, in the same cell with petitioner. He seeks by this writ to be returned from San Quentin to the county of San Joaquin in order to take part in and to testify in this action against the sheriff.

It is the contention of petitioner that he is entitled to the writ sued upon, which was, under the common law, used for the production before the court of witnesses in pending actions. This writ is defined by Blackstone as one which issues when it is necessary to remove a prisoner in order to prosecute or bear testimony in any case or to be tried in the proper jurisdiction wherein the act was committed.

We may consider the claims of petitioner either as they apply to his rights as a witness or as to his rights as a party to the action. Let us consider first his right as a witness.

In volume 70, page 64, of Corpus Juris, it is said in reference to writ of

habeas corpus ad testificandum:

“ . . . The power to issue such process is inherent in the courts, and in some jurisdictions is confirmed, but in others superseded by statute.”

There is no doubt but under the common law such rights existed, but where the state has spoken, that supersedes the common law. (Pol. Code, see. 4468.)

Section 1997 of the California Code of Civil Procedure apparently has superseded this writ as it applies to a witness, as that section provides: “If the witness be imprisoned in the county jail where the action or proceeding is pending, his production may be required. In all other cases his examination, when allowed, must be taken upon deposition.”