CHAPTER 53. EXTRAORDINARY REMEDIES.
ARTICLE 4. HABEAS CORPUS.
§53-4-1. When and by whom writ granted.
The writ of habeas corpus ad subjiciendum shall be granted
forthwith by the supreme court of appeals, or any circuit court, or
any other court given power by any particular statute to grant the
same, or any judge of either court in vacation, to any person who
shall, by himself or by someone in his behalf, apply for the same
by petition, showing by affidavit or other evidence probable cause
to believe that he is detained without lawful authority.
§53-4-2. To whom writ directed; return of writ.
The writ shall be directed to the person in whose custody the
petitioner is detained and made returnable as soon as may be. If
the writ be ordered by any court or judge other than the supreme
court of appeals or a judge thereof, it shall be returnable before
the court or judge ordering it, if such court or judge be of the
county wherein the petitioner is detained; otherwise, before a
proper court or judge of the county wherein the petitioner is
detained. If the writ be ordered by the supreme court of appeals
or a judge thereof, it may be made returnable either before such
court or before a proper court or judge of the county wherein the
petitioner is detained.
§53-4-3. Bond may be required of petitioner.
The court or judge granting the writ may previously require
bond with security in a reasonable penalty, payable to the person
to whom the writ is directed, with condition that the petitioner
will not escape by the way, and for the payment of such costs and
charges as may be awarded against him. It shall be filed with the
other proceedings on the writ and may be sued on for the benefit of
any person injured by the breach of its condition.
§53-4-4. Service of writ.
The writ shall be served on the person to whom it is directed,
or, in his absence from the place where the petitioner is confined,
on the person having the immediate custody of him.
§53-4-5. Penalty for disobeying writ.
If any person on whom such writ is served shall, in
disobedience to such writ, fail to bring the body of the
petitioner, with a return of the cause of his detention, before the
court or judge before whom the writ is returnable, for three days
after such service, he shall forfeit to the petitioner three
§53-4-6. When affidavits may be read as evidence.
At the direction of the court or judge, the affidavits of
witnesses taken by either party, on reasonable notice to the other,
may be read as evidence.
The court or judge before whom the petitioner is brought,
after hearing the matter both upon the return and any other
evidence, shall either discharge or remand him, or admit him to
bail, as may be proper, and adjudge the costs of the proceedings,
including the charge for transporting the prisoner, to be paid as
shall seem to be right.
§53-4-8. Facts proved may be made part of record.
All the material facts proved shall, when it is required by
either party, be made a part of the proceedings, which, when they
are had in vacation, shall be signed by the judge and certified to
the clerk of the court in which the judgment is rendered, and be
entered by him among the records of that court.
§53-4-9. Powers of judge in vacation.
The judge issuing any such writ in vacation, or the judge
before whom it is tried, shall have the same power to enforce
obedience to the writ, to compel the attendance of witnesses, or to
punish contempt of his authority, as a court has; and his judgment
on the trial of the writ, when entered of record as aforesaid,
shall be considered and be enforced as if it were a judgment of the
court among whose records it is entered.
§53-4-10. Judgment conclusive; exception.
Any such judgment entered of record shall be conclusive,
unless the same be reversed, except that the petitioner shall not
be precluded from bringing the same matter in question in an action
for false imprisonment.
§53-4-11. Revision of judgment by supreme court of appeals.
If, during the recess of the supreme court of appeals, the
governor or the president of the said court should think the
immediate revision of any such judgment to be proper, he may summon
the court for that purpose to meet on any day to be fixed by him.
§53-4-12. Disposition of prisoner and proceedings pending writ of
When the prisoner is remanded, the execution of the judgment
shall not be suspended by the writ of error, or suspended for the
purpose of applying for one; but where he is ordered to be
discharged, and the execution of the judgment to be suspended for
the purpose of applying for a writ of error, the court or judge
making such suspending order may, in its or his discretion, admit
the prisoner to bail until the expiration of the time allowed for
applying for the writ of error, or, in case the writ of error be
allowed, until the decision of the supreme court of appeals thereon
is duly certified.
§53-4-13. Writs of habeas corpus ad testificandum.
Writs of habeas corpus ad testificandum may be granted by any
circuit court, or any court of record of limited jurisdiction other
than a county court, or any judge thereof in vacation, in the same
manner and under the same conditions and provisions as are
prescribed by this article as to granting the writ of habeas corpus
ad subjiciendum, as far as the same are applicable.
Note: WV Code updated with legislation passed through the 2013 1st Special Session
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