In re Wright

65 How. Pr. 119

Opinion

Davis, P. J.

— In disposing of the several writs of habeas corpus -in the court below the following opinion was pronounced by the court (See opinion of Lawrence, J., repeated im, 63 How., 315). After quoting the entire opinion the judge says:

We concur in the reasoning and conclusions of this opinion and in the correctness of the order remanding the prisoners.

We think also that the writs should have been dismissed and the prisoners remanded without proceeding to the trial of the question as one of. fact, whether the ordinance was or was not a reasonable one.

The court has no jurisdiction on habeas corpus after convictions in criminal cases to retry questions of fact upon which the correctness of the judgment of the court in which the petitioner was convicted depends. Such questions must be tried and determined by the court having jurisdiction to try the alleged offense. So far as the reasonableness or unreasonableness of the ordinance depended on questions of fact, the place for their trial was- the court of the police justice, and the judgment of that court could only be reviewed on appeal or writ of certiorari by the appellate court having jurisdiction to hear such appeals.

The return to the writ of habeas corpus in these cases showed nothing more than the commitment issued by the police justice. They recited the arrest, trial and judgment of the court convicting the petitioners of violating the ordinance. Ho question was made as to their sufficiency of form. Hone of the proceedings had before the police justice were brought up, and it must be assumed that the trial was in all respects regular. The traverse simply presented the fact that the ordinance so violated was one enacted by the park commissioners prohibiting the use of bicycles in the Central Park, and alleging that such ordinance was unreasonable and void by reason of the fact set forth in the petition. It is not the province of the writ of habeas corpus to retry any questions of fact upon which the findings of the court of original jurisdiction must be presumed to have been predicated. And unless it appear as matter of law that the ordinance is void, it is the duty of the magistrate to remand the petitioner, leaving him to his remedy of review by appropriate proceedings. A very erroneous impression of the purpose and office of the writ of habeas corpus seems to be rapidly perverting it from a writ of relief from unlawful imprisonment to one of review for the retrial of questions of fact, or the reconsideration of questions of law, clearly within the jurisdiction of the court or officer who has passed upon the case and committed the accused. In this ease the retrial- of the question of the reasonableness of the ordinance as one depending upon facts has occupied a long time and the evidence extends through several hundred printed pages.

The opinion of the learned judge at special term has correctly disposed of all the questions, and our reference to the practice is only needed to enable us to disapprove of the unnecessary and illegal course often taken in proceedings where petitioners have been tried or examined and committed by courts having jurisdiction of both the person and subject matter.

The orders should be affirmed.

Daniels, J., concurs.