State v. Bloom , 17 Wis. 521 ( 1863 )

By the Court,

Cole, J.

The only question presented by this record is, whether Judge Messmore ^was a de facto judge, so as to render his acts of trying and sentencing the defendant in error valid and binding. This point has already been decided in the affirmative, in the case of Bridget Boyle, 9 Wis., 264. It is impossible to distinguish this case from the question involved in that case, and therefore the order of the county judge, discharging the defendant in error from imprisonment, must be reversed.

We deem it necessary and proper on this occasion to call the attention of officers authorized to inquire on habeas corpus into the cause of detention or imprisonment of a party, to section 21, chap. 158, R. S. It will be seen that this section requires, the officer, whenever the testimony shows that the person applying to be discharged has committed an offense, not to discharge him absolutely, but to hold him to bail. The general practice is to discharge the party absolutely whenever the commitment is irregular, although the evidence may be clear that ho has committed a crime for which he should be tried and punished. Under such circumstances the statute requires the officer to proceed to let such party to bail, if the case be bailable, “and good bail be offered,” and not to discharge absolutely. In this case, of course, the return showed that the imprisonment was lawful. But cases frequently arise where the evidence clearly shows that the party has committed a criminal offense, and yet the officer releases him on account of some irregularity or defect in the warrant of commitment. This is all wrong, and in direct violation of the plain and wholesome provisions of the statute.

The order of the county judge, discharging Bloom from imprisonment, is reversed.