Title 12, Title 12: Court Procedure

§ 3955. Complaint to be sworn to The facts set forth in the complaint shall be verified by the oath of the person making the application or by that of some credible witness. Such oath may be administered by the court or magistrate to whom the application is made, or a Superior ju…

§ 3956. Issue and return of writ Without delay, such court or magistrate shall award and issue a writ of habeas corpus, which shall be made returnable forthwith.

§ 3957. Signing of writ When the writ is issued by the Superior Court, it shall be signed by the clerk, otherwise by the magistrate issuing the same. (Amended 1966, No. 41 (Sp. Sess.), § 5, eff. March 12, 1966; 1973, No. 193 (Adj. Sess.), § 3, eff. April 9, 1974.)

§ 3958. Return after court adjourns; procedure When the court to which the writ is returnable adjourns before it is returned, the return shall be made before one of the Justices of the Supreme Court. If the writ is in any case returned before one Justice or judge when the court i…

§ 3959. Designation of person to be served The person having the custody of the prisoner may be designated by his or her official title, if he or she has any, or by his or her name. If such title or name is unknown or uncertain, he or she may be described by an assumed appellatio…

§ 3960. Designation of prisoner The prisoner to be produced shall be designated by his or her name, if known, and if that is unknown or uncertain, he or she may be otherwise described so as to make known who is intended.

§ 3961. Pay for transporting prisoner When the prisoner is confined in a common jail, or in the custody of a civil officer, the court or magistrate issuing the writ shall certify thereon the sum to be paid for bringing him or her from the place of imprisonment. The officer to who…

§ 3962. When a person to be served is not an officer In cases of imprisonment by a person not an officer of the State or of the courts of the United States, the writ shall be directed to a sheriff or his or her deputy, commanding him or her to take and have the person imprisoned …

§ 3963. Receipt and return of writ; notice to State’s Attorney or Attorney General A person to whom the writ is directed shall receive the same and, upon payment or tender of the charges demandable for its execution, shall make return thereof forthwith. In case a person is restra…

§ 3964. Return of statement as to custody and authority In cases other than those provided for in section 3962 of this title, the person who makes the return shall state therein, and, in the cases provided for in such section, the person in whose custody the prisoner is found sha…

§ 3965. Return to be signed and sworn to; exception The return or statement shall be signed by the person making it, and shall be sworn to by him or her unless he or she is a sworn public officer and makes the return in his or her official capacity.

§ 3966. Prisoner brought unless sick The person who makes the return or statement, at the same time, shall bring the prisoner, if in his or her custody or power or under his or her restraint, according to the command of the writ, unless prevented by the sickness or infirmity of s…

§ 3967. Examination in case of sick prisoner When the prisoner cannot be brought to the place appointed for the return of the writ, without danger, because of his or her sickness or infirmity, that fact shall be stated in the return. When such fact is provided to the satisfaction…

§ 3968. Examination; time; adjournment When the writ is returned, such court or magistrate, without delay, shall examine the causes of imprisonment or restraint; but the examination may be adjourned from time to time.

§ 3969. Notice of examination When it appears that the prisoner is detained on a process under which another person has an interest in continuing his or her imprisonment or restraint, he or she shall not be discharged until sufficient notice has been given to such other person, o…

§ 3970. Prisoner charged with crime, notice to State’s Attorney When it appears that the prisoner is imprisoned on a criminal accusation, he or she shall not be discharged until sufficient notice is given to the State’s Attorney, whose duty it is to prosecute for such offense, to…

§ 3971. Pleading; hearing The prisoner may deny any of the facts set forth in the return or statement and may allege other material facts. Such court or magistrate may examine the causes of the imprisonment or restraint in a summary manner and hear the evidence produced by any pe…

§ 3972. Discharge; decision and record When legal cause is not shown for the imprisonment or restraint, such court or magistrate shall discharge the person therefrom. The petition for a writ of habeas corpus heard by a court or magistrate, together with the decision thereon in wr…

§ 3973. Bail When the prisoner is detained for a bailable cause or offense, such court or magistrate shall admit him or her to bail, if a sufficient amount thereof is offered, and if not, shall remand him or her with an order fixing the sum in which he or she shall be held to bai…

§ 3974. Remand of prisoner When the prisoner is lawfully imprisoned or restrained or is not entitled to be released on bail, he or she shall be remanded to the person from whose custody he or she was taken or to such other person or officer as by law is authorized to detain him o…

§ 3975. Custody pending judgment Until the judgment is given, such court or magistrate may remand the prisoner, admit him or her to bail to appear from day to day, commit him or her to the custody of the sheriff of the county, or place him or her under such other care and custody…

§ 3976. Refusal to receive or obey and execute writ—Contempt proceedings When a person to whom a writ of habeas corpus is directed refuses to receive the same, or does not obey and execute it, unless sufficient excuse therefor is shown, such court or magistrate shall compel obedi…

§ 3977. Precept to another officer or person Upon such refusal or neglect, such court or magistrate may also issue a precept to an officer or other person, to be designated therein, commanding him or her to bring forthwith before such court or magistrate the person for whose bene…

§ 3978. Penalty for not executing writ A person neglecting or refusing to receive and execute a writ of habeas corpus shall forfeit to the person aggrieved $400.00, to be recovered in an action of tort on this statute.

§ 3979. Confinement for contempt—Issuance and return of writ When a person disobeys the order, decree, judgment, or process of a court or a magistrate thereof, or is guilty of a contempt of such court or magistrate, and in consequence is imprisoned or confined by the order or jud…

§ 3980. Discharge of person confined for contempt When it appears on the hearing upon such writ that such disobedience or contempt was committed through ignorance, mistake, or misapprehension, or by acting in good faith under the advice of counsel, and that relief may be granted …

§ 3981. Bond The Supreme Court may order the person bringing such writ to file a bond with the Clerk of the Court, in such sum and with such sureties and conditions as it directs, to be given to the Clerk of the Court or to such person as the Court designates in the order, and ma…

§ 3982. Penalty for attempting to elude service Whether a writ has been issued or not, a person who has in his or her custody or under his or her power a prisoner entitled to a writ of habeas corpus, and who, with intent to elude the service of such writ or to avoid the effect th…

§ 3983. Recovery of penalty not bar to further suit The recovery of a penalty imposed by this chapter shall not be a bar to an action for false imprisonment or for a false return to the writ of habeas corpus or for damages.

§ 3984. Imprisonment for same cause after discharge A person who has been discharged upon habeas corpus shall not be imprisoned or restrained again for the same cause, unless he or she is indicted therefor or convicted thereof, or does not find bail as ordered by a court of recor…

§ 3985. Habeas corpus to bring respondent or witness into court Nothing in this chapter shall prevent a court from issuing a writ of habeas corpus, when necessary, to bring before it a prisoner for trial in a criminal cause pending in the court, or to be surrendered in discharge …