Ex parte Zeehandelaar

Sharpstein, J. The code requires the person on whom a writ of habeas corpus is served to make a return thereto; and if the party is detained by virtue of any writ, warrant, or other written authority, a copy thereof must be annexed to the return. (Pen. Code, sec. 1480.) [239]Such a return has been made in this case, and the petitioner excepts to the sufficiency of it, because, as he insists, no legal cause is shown for his imprisonment. The return shows that during the progress of a trial in the Superior Court the petitioner was called and sworn as a witness, and was asked a question by the court, which he refused to answer. For such refusal he was adjudged guilty of contempt, and ordered to be imprisoned until he should answer said question. There are no facts recited in the order which show or tend to show that the question was pertinent to the matter in issue.

“Á witness must answer questions legal and pertinent to the matter in issue.” (Code Civ. Proc., sec. 2065.) It is his right “to be examined only as to matters legal and pertinent to the issue.” (Id., sec. 2066.) Such being his right, we think it follows that the refusal to answer a question not pertinent to the issue was no contempt, and that the order adjudging him guilty of a contempt which fails to show that the question was pertinent to the issue is invalid. Conceding, as we do, that the court had jurisdiction of the action on trial, we cannot concede its power to inquire into matters outside of the issues therein. It had the power to order questions pertinent to the issues to be answered, but it had not the power to order questions not pertinent thereto to be answered. As to matters not in issue it had no jurisdiction.

In order to show a legal cause for the imprisonment of the petitioner, the return in this case should show that the question which he refused to answer was pertinent to the matter in issue before the court, and as this is not shown by the return, no legal cause for the imprisonment of the petitioner is shown, and he should be discharged, and it is so ordered.