Lee v. Gough

124 A.2d 549, 84 R.I. 358, 1956 R.I. LEXIS 75

Opinion

Flynn, C. J.

This proceeding is captioned or designated as a “Verified Application For Writ Of Certiorari.” However, according to the petitioner’s statement on page 1 thereof it is brought as “an appeal from a decision rendered in Providence Superior Court (Jalbert, J.) on petitioner’s application for writ of habeas corpus argued therein June 26, 1955.” Incorporated in the petition by reference as an exhibit is a copy of the rescript in the case of John H. Lee v. William C. Kindelan, Warden, which is docketed as M. P. No. 3675 in the superior court. In that rescript Mr. Justice Jalbert on June 26, 1955 denied the applicant’s petition for a writ of habeas corpus. It is such decision which petitioner seeks to appeal by means of the instant petition for certiorari.

A petition for a writ of certiorari at common law is not one of right but is addressed to the discretion of this court, which has exclusive jurisdiction thereof. At common law no review by appeal was permitted from a decision denying a petition for habeas corpus. This state has consistently 'followed the common-law practice in that respect. Moreover general laws 1938, chapter 584, §19, expressly provides that if a party is found by the superior court to be lawfully imprisoned or restrained he shall be remanded, and “No appeal or exception shall lie to the judgment of the superior court in habeas corpus * *

In view of that practice and statute, and since the superior court has concurrent jurisdiction with this court to issue the writ of habeas corpus, the decision of the superior court denying the petition for a writ of habeas corpus is not subject to appeal directly, nor is it appealable to this court indirectly by means of a petition for certiorari.

John H. Lee, pro se, for petitioner. William E. Powers, Atty. Gen., for State.

The petition is therefore denied.