Ex parte Sternes

Paterson, J. From the stipulation filed herein, it appears the petitioner could prove, if permitted to do so, that at the time of the issuance of the writ of habeas corpus commanding him to produce the body of one Ah Fong, said Ah Fong was in the actual custody of one W. H. Lee in the county of Yuba, and that at the time of the service of the writ upon petitioner said Ah Fong was in the actual custody of the sheriff of Yuba County, at Marysville, and therefore out of the jurisdiction of the superior court of Nevada County on a habeas corpus proceeding (Constitution, art. 6, sec. 5); that the original writ was not delivered to petitioner, who is a deputy sheriff of Yuba County, as required by the Penal Code, section 1478; that, after service of an imperfect' copy of the writ upon him, he demanded of the sheriff of the county of Yuba the delivery to him of the custody of Ah Fong, that he might comply with the command of the court, but said sheriff refused, and has always refused, to permit him to take said Ah Fong into his custody; and that “the said court adjudged that the said Sternes had the actual custody of the said Ah Fong, and willfully refused to produce him in said court Without any trial of said fact, or any charge upon that subject having been made, or any warrant, or attachment, notice, or order to show cause, having been issued, or any opportunity for the said Sternes to be heard upon the said question, without any trial and without any evidence.”

The stipulation aforesaid was made at the hearing to aid the court in the dispatch of its business, counsel for respondent objecting, however, that no evidence could be received in this matter to contradict or impeach the recitals and findings contained in the judgment of the superior court.

The judgment of conviction upon which respondent relies as a conclusive answer to the petition and return to the writ herein sets forth a copy of the petition upon which the writ was issued out of the superior court, com-[161]manding the production of the body of the said Ah Pong, a copy of the writ, and concludes as follows: “And [said writ] having on said fifth day of April, 1888, been duly served upon George H. Sternes at Nevada township, Nevada County, California; and said matter having on the sixth day of April, 1888, been at the request of said Sternes continued for hearing until ten o’clock, A. m., April 7, 1888; and on said last-named date said Sternes having appeared in said court, and made and filed in said court his return to said writ, in which return it was alleged, among other things, that said Sternes was the person named John Doe in said writ; that said Ah Fong was not in his custody or under his control at the time of the issuance of or the service of said writ upon him; and said judge having thereupon proceeded to take testimony as to said matter, and it appearing therefrom to the satisfaction of said judge that said Ah Fong was in the custody and under the control of said Sternes at the time of the issuance and service upon him of said writ, and that it was within the power of said Sternes to produce the body of said Ah Fong in obedience to said writ at the time of service of said writ upon him; and said judge having thereupon continued the further hearing of said matter until Monday, April 9, 1888, at two o’clock, p. m., at the request of said Sternes, to enable him to produce the body of said Ah Fong before said judge in obedience to said writ: Now, on this day last aforesaid, said George H. Sternes, having appeared before said judge, and having failed to produce the body of said Ah Fong before such judge in obedience to said writ, it is therefore adjudged that said George H. Sternes is guilty of contempt of said court,” etc.