In re

• Decision Date: 23 January 1889
• Citation: 9 N.M. 647,43 P. 691
• Parties: In re BRYDON.1
• Court: New Mexico Supreme Court

9 N.M. 647

43 P. 691

In re BRYDON.1

Supreme Court of the Territory of New Mexico.

Jan. 23, 1889.

Petition of James Brydon for writ of habeas corpus.

Where, on habeas corpus, there was nothing to contradict the return of the sheriff, showing that, at the date of the petition, the petitioner was not restrained of is liberty, an order releasing him from unlawful imprisonment could not be made.

E. L. Bartlett, for petitioner.

LONG, C. J.

On the 17th day of January, 1889, James Brydon filed in the supreme court his petition for writ of habeas corpus; averring therein that at that date he was unlawfully restrained of his liberty by Francisco Chavez, sheriff of Santa Fé county. It is further averred that the cause of such restraint is a commitment issued by a justice of a peace of said county; and it appears by other averments that an affidavit was filed before such justice, upon which a warrant issued, and the petitioner was arrested, on the charge attempted to be made in said affidavit. The petitioner predicates his right to a release from the alleged illegal imprisonment on the ground that the affidavit on which the arrest was made, and the proceeding had before the justice of the peace, does not charge any offense under the law, and that, therefore, the warrant which issued was void, and the proceeding also void. The assistant attorney general appeared in this court on behalf of the territory, and a stipulation appears in the record, between him and the petitioner's counsel, in relation to the evidence which may be considered. The writ, as prayed for, was ordered by this court, and returned on the 21st day of January. The purpose, in part, for which the writ was ordered, was to ascertain whether the petitioner was in fact restrained of his liberty at all, as alleged in the petition, at the commencement of the proceedings. The return of the sheriff is as follows: “I. Francisco Chavez sheriff, do hereby certify, that James Brydon has been under the custody of the sheriff since the 14th day of January, A. D. 1889, and up to this time he is still under custody of said sheriff, Santa Fé N. M. Jany. 21st 1889, he is under actual custody having surrendered this morning.” The order for the writ was made the 17th, and the same seems to have been issued the 19th of January. There is some ambiguity about the sheriff's return, but the only reasonable interpretation, of it is that there was no actual custody of the petitioner by the...