Ex Parte Baker

HARRISON, P. J.

The petitioner was arrested in the city of San Jose upon a charge of bigamy, and upon the hearing of the complaint thereon was held to answer before the superior court, and a commitment for his detention pending such hearing was issued to the sheriff, by which he was taken into custody, and he has applied for a writ of

habeas corpus

upon the ground that the evidence at the hearing before the magistrate was insufficient to show that any crime had been committed by him. There was no evidence before the

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magistrate that the woman to whom it was charged he had been previously married was living at the time of his second marriage in the county of Santa Clara, and for that reason the order for his commitment was unauthorized.

In the return of the sheriff he sets forth that, in addition to the warrant of commitment issued upon the aforesaid charge, he holds him by virtue of a warrant and commitment issued after the writ herein had been granted and before the hearing thereon, and annexes to his return what purports to be a copy of an order for the arrest of the petitioner for a different offense, and of a commitment of the petitioner by the magistrate to the custody of the sheriff upon said arrest. The sheriff has not produced the original of said warrant or commitment, and no evidence has been offered that such documents exist. No application has been made on behalf of the people for an amendment of the return, or for a continuance of the hearing for the purpose of producing competent evidence of the existence of the documents. The return is therefore insufficient to justify the sheriff in holding the petitioner in his custody.

It is therefore ordered that the petitioner be discharged.

Hall, J., and Cooper, J., concurred.