State v. Kelly

The opinion of the court was delivered by

Mintuen, J.

The application is based upon the fact that after one commitment had been found defective, while the petitioner was serving his sentence under it, a second commitment was issued by the committing magistrate, which is concededly regular, and upon which he is now detained. The power of the court to amend its own record particularly in matters of form is elementary.

The question presented upon an application of this nature is whether the record returned with the body of the prisoner legally justifies his further detention. Since the second commitment was regular, the legality of the record upon this writ obviously is complete, and that is the only question for consideration. If the power of the committing magistrate be made an issue it must be done upon certiorari or other proceeding in which the legality of the act can come directly in issue. The prisoner will be remanded and the writ will be dismissed.