Dickson v. Mullings

I concur. In view of the provisions of our statute, however, relating to the granting and disposition of writs of habeas corpus, I feel constrained to make the following observations:

Comp. Laws Utah 1917, § 2672, provides that in the petition for a writ of habeas corpus it must be made to appear that a prior writ for the same cause has not been denied. Successive writs for the same cause are therefore not permitted under our statute. In view of that, we have held that appeals are allowed by both sides in such proceedings as in other civil cases.Winnovich v. Emery, 33 Utah, 345, 93 P. 988. After a writ has been granted, however, our statute, § 2691, further provides:

"Upon the return of any writ of habeas corpus, the court or judge shall, after having given sufficient notice, proceed in a summary manner to hear the matter, and shall dispose of the prisoner as justice may require."

The purpose of the statute, manifestly, is to prevent injustice both to the prisoner and to the public, or to any one directly interested in the matter. The court may therefore make the discharge or remand of the prisoner conditional. If the court deems it proper in the interest of justice that the questions involved in the proceeding should be passed on by this court, it may so provide in the order of discharge and to that extent make it conditional.

I am also of the opinion that, in carrying out the effect of the provisions of our statute, the court may permit the prisoner to go at large pending the appeal upon such terms and conditions, in the words of the statute, as justice may require.

While in my judgment the foregoing is the legal effect of Mr. Justice Straup's opinion, I have deemed it proper to add the foregoing observations in explanation of my concurrence.