State Ex El. Presty v. Lowe

*265 Hatcher, President: On Jan. 6, 1927, Joe Presty was arrested upon a warrant issued by A. B. Collett, a justice of Brooke county. The warrant charged Presty with conspiracy to inflict bodily injury upon Nic Di Fabbio and other persons. The prisoner was committed to jail to answer the indictment. Presty filed a petition in this court praying for a writ of habeas corpus, on the ground that there was no legal evidence before the justice which warranted his commitment. The writ was awarded, and a return was made thereto by the sheriff of Brooke county. Among other matters in the return, are allegations that on Jan. 22, 1927, the petitioner filed a petition before the Hon. J. B. Somerville, judge of the circuit court of Brooke county, praying for a writ of habeas corpus against the respondent, as sheriff; that the writ was awarded by the said judge, a return made by respondent, evidence taken, and a full hearing had; and that the judge refused the prayer of the petitioner, dismissed the proceeding by a final order, and had the same entered of record. The return further alleges that the cause of action alleged in the petition before the circuit judge is practically the same as in this court; that the judgment of the circuit court has not been appealed from or set aside; and that the petitioner is therefore barred from maintaining his proceedings in this court. The sheriff files with his return a certified copy of the order entered in vacation of the circuit court of Brooke county, from which it appears that on Jan. 22, 1927, “came Robert M. Lowe, Sheriff of Brooke county, in answer to applications for writs of habeas corpus, and also came Biagio Merandino, R. C. Wilkin and Joseph S. Tosti, counsel for the petitioner for said writs, and the judge having heard the evidence in said matters, and the arguments of counsel, and it appearing to said judge that said petitioners had a hearing of the matters involved in said writ before A. B. Collett, a justice of Brooke county, and being of opinion that no ground was shown for the issuing of said writs, said judge refused to issue said writs, and left the said petitioners in the hands of the sheriff of Brooke county”. It does not appear clearly from the above order whether a *266 writ of babeas corpus was actually issued; but tbe return bere so states, and there is no evidence to tbe contrary. At common law tbe return of an officer to a writ of babeas corpus, prima facie imported verity. Church on Habeas Corpus, par. 124; 12 R. C. L. p.-1237. That rule bas not been changed by statute in West Virginia. An order remanding a petitioner to custody in this proceeding is not res adjudicata at common law. Church, supra par. 386. But tbe common-law doctrine bas been changed by statute in this state. Ch. 111, Sec. 9, Code, provides that tbe judge before whom a bearing is bad, upon a writ of habeas corpus, may have bis judgment thereon entered of record. Sec. 10 then provides: “Any such judgment entered of record shall be conclusive, unless tbe same be reversed, except that the petitioner shall not be precluded from bringing tbe same matter in question in an action for false imprisonment.” Tbe order of tbe circuit judge shows that bis judgment was rendered after full bearing. That judgment bas not been reversed. Under Sec. 10 it is conclusive. Tbe same situation exists in regard to tbe other petitioners herein, as to Presty. Consequently, all tbe writs will be dismissed. Writs dismissed; petitioners remanded.