In re Rose

ADAMS, P. J. Inez Rose filed in this court on September 20, 1948, a petition for a writ of habeas corpus, alleging therein that she was being restrained of her liberty illegally by Carlos A. Sousa, Sheriff of San Joaquin County, by reason of an alleged warrant, copy of which was attached to the petition and marked Exhibit “A”; and that she had been imprisoned since the 1st day of September, 1948. She averred that the warrant aforesaid had been issued in a certain habeas corpus proceeding instituted in San Joaquin County in which action she had been commanded to and did appear with her infant son; that said matter had been continued from time to time but that she had not been served with notice nor ordered to appear on such subsequent days, nor had the court, in her presence, ever ordered her to appear on a succeeding day.

The warrant above mentioned was dated October 17, 1947, and recited that the court had issued a writ of habeas corpus in a proceeding instituted by B. H. Mercer and Sue Mercer, his wife, adoptive parents of Donnie Evans Mercer, a minor, and parents of this petitioner, for the custody of said minor, requiring Inez Bose to produce her minor son in the Superior Court of San Joaquin County on October 8, 1947, so that the court might inquire into the alleged unlawful detention of said minor son by her, his natural mother,; that it appearing to the court on hearing on October 16, 1947, that counsel for Inez Bose did not then know the whereabouts of said mother and child, and it appearing to the court that said Inez Bose had knowingly and without just cause refused to attend said hearing after the first day’s session when said proceeding was not completed, and had since wilfully refused to produce said child at subsequent hearings as commanded by the court and as commanded by the writ of habeas corpus, it was ordered “pursuant to provisions of section 1497 of the Penal Code of the State of California, that the Sheriff of the County of San Joaquin apprehend the said Inez Bose and bring her forthwith into this Court.”

We issued the writ and released petitioner on bail. The sheriff made a return to the petition, alleging that petitioner had been arrested on August 31, 1948, by the Police Department of San Francisco under the writ of apprehension issued on October 17, 1947, pursuant to a petition filed by the [301]attorney for R. H. Mercer and Sue Mercer, and pursuant to an order of the Superior Court of San Joaquin County granting the prayer of the said petition on August 25, 1948, copies of which petition and order were attached to the return. He further averred that he had placed said Inez Rose in jail on September 1, 1948, “pursuant to the writ of apprehension,” and had produced her in court on September 2,1948, at which time a continuance had been granted to September 20th, the court then remanding said Inez Rose to his custody; that on September 20, 1948, he had again brought petitioner before the court, at which time proceedings had been ordered stayed until the disposition of the writ issued out of this court, but said Inez Rose was further remanded to his custody.