Ex parte Chapman

<p>When an application on habeas corpus is denied because the writ had been suspended, and thereafter, and before appeal taken is allowed, the suspension is revoked, the question of power of the authorities to suspend the writ becomes a moot one not calling for determination by this court.</p> <p>A proceeding in habeas corpus is a civil, and not a criminal, proceeding, and as final orders of Circuit or District Courts of the United States in such a proceeding can only be reviewed in this court by appeal, under § 10 of the Act of July I, 1902, 32 Stat., 1369, a final order of the Supreme Court of the Philippine Islands in habeas corpus is governed by the same rules and can only be reviewed by appeal and not by writ of error.</p>

Pursuant to the rules of practice (§ 23-24), once a petition for a writ of habeas corpus is filed in the Superior Court, ''[t]he judicial authority shall promptly review [the] petition . . . to determine whether the writ should issue. The judicial authority shall issue the writ unless it appears that . . . the court lacks jurisdiction . . . the petition is wholly frivo- lous on its face . . . or . . . the relief sought is not available.'' Pursuant further to the rules of practice (§ 23-29), ''[t]he judicial authority may, at any time, upon its own motion or upon motion of the respondent, dismiss the petition . . . if it determines [inter alia] that . . . the court lacks jurisdiction . . . [or] the petition . . . fails to state a claim upon which habeas corpus relief can be granted . . . .'' The petitioner, who had been convicted, on a guilty plea, of the crime of robbery in the third degree, filed a petition for a writ of habeas corpus, seeking to withdraw his guilty plea and to have his conviction vacated or dismissed. The petitioner alleged that he had received a sentence of unconditional discharge in connection with the robbery conviction but that he remained incarcerated on unspecified other charges and that the robbery conviction was adversely affecting his eligibility for parole on the other charges. The habeas court granted the petitioner's applica- tion for a waiver of fees but took no action as to his request for the appointment of counsel. Shortly thereafter, however, the court, sua sponte and without providing the petitioner with notice or an opportunity to be heard, dismissed the petition pursuant to Practice Book § 23-29 on the ground that the habeas court lacked jurisdiction because the petitioner was not in custody for the conviction that he was challenging at the time he filed the petition. On the granting of certification, the petitioner appealed to the Appellate Court, which affirmed the habeas court's judgment, and the petitioner, on the granting

<p>Appeal from District Court, Second District; Hon. N. J. Harris, Judge.</p> <p>Application by Catherine Lambing Hummel for a wri,t of habeas corpus against Samuel J. Parrish and Caddie K. Parrish to obtain the custody of her minor child. Prom an order awarding the custody of the child to the defendants, plaintiff appeals.</p> <p>APPELLANT'S POINTS.</p> <p>The presumption is that the parent is a fit and suitable person to be entrusted with the care of his children and that the interests and welfare of said children are best subserved when under such care and control. (Wilson v. Mitchell, 111 Pac. 23, 30 L. It. A. N. S. 511; Miller v. Miller, 123 la. 165, 98 N. W. 631; Swarens v. Swarens, 97 Pac. 968; State v. Martin, [Minn.] 103 N. W. 888; Terry v. Johnson, [Neb.] 103 N. W. 318; Hibbeite v. Bains, 78 Miss. 695, 51 L. it. A. 839.)</p> <p>Before the legal right of the parent to the custody of the child will be ignored or invaded by the court, it must be established by plain and certain proofs either that the parent is unfit to be entrusted with the care of minor children or that he has abandoned the child and surrendered its care and custody to the respondents. And he who seeks to withhold the custody of a minor child from its natural parents has the burden of establishing either unfitness or abandonment. ( Wilson v. Mitchell, supra; Eibbette v. Bains, supra; Wier v. Marley, 99 Mo. 484, 6 L. R. A. 672; Norvall v. Zing-master, 57 Neb. 159, 77 N. W. 373.)</p> <p>The natural guardian of a bastard child is the mother, and unless it appears by clear and satisfactory proof that she is manifestly unsuited to give it proper training, or that she has surrendered the child to respondents substituting them in her own place so that they stand m loco parentis to the child, and that she has continued this condition of affairs so long a time that a severance of the relationship between the child and respondents would surely be detrimental to the child then clearly she is entitled t

<p>Habeas corpus proceedings by Florence J. Chappell against Ada Freeman, a probation officer, to obtain the release from custody of Lois Mould, an infant.</p> <p>Exercising original jurisdiction, this court issued the writ of habeas corpus to bring before the court Lois Mould, a female child 12 years of age, who, it was represented, was unlawfully restrained of her liberty by the probation officer of Wayne county. This officer produced the child, as she was commanded to do, and returned that she had her in custody by virtue of an order of the probate court of Wayne county, and also by virtue of an order, finding, and decree of the circuit court for Wayne county. The order of the probate court, juvenile division, made May 11, 1910, is as follows:</p> <p>‘ ‘A petition having been heretofore filed in this court wherein it is alleged that Lois Mould, alias Mole, is a juvenile delinquent person within the meaning of the statutes of the State of Michigan, and on the 14th day of April all parties interested being then represented in open court or having notice, and it then appearing to the court necessary and for the best interests and welfare of said child and the public, the court placed said child in the care and custody of Ada Freeman, a duly appointed probation officer, and ordered said child detained for a period of 80 days, and on the 23d day of April a new complaint having been filed in such matter and after due notice to all persons interested come on for hearing before this court, on the 4th day of May instant, at 8:30 a. m., and Louis W. McClear, an attorney, appearing for the alleged guardian of said child, and requesting an adjournment to this date, and upon hearing this day, said Louis W. McClear again appearing and asking that said matter be further continued, it is ordered that said matter be and the same is hereby continued to the 18th day of May inst.,at 9 o’clock in the forenoon, and, it still appearing to the court that the interests of said child and

The petitioner sought relief in a second petition for a writ of habeas corpus, claiming, inter alia, that R, his counsel during his first habeas action, and G, his criminal trial counsel, had rendered ineffective assistance by failing to present expert testimony from a forensic pathologist to support the petitioner's claim of actual innocence. The petitioner had been con- victed of several crimes, including murder, as a result of a drug related shooting. K, an associate medical examiner, had performed an autopsy that showed that the victim died from a single gunshot to the head at close range. At the petitioner's criminal trial, K testified that the barrel of the gun had been touching the victim's skin when the gun was dis- charged and that the wound was a typical contact gunshot wound of entrance. This court upheld the petitioner's conviction on direct appeal. At his first habeas trial, R presented the testimony of C, the state's chief medical examiner, which was consistent with that of K, and the testimony of D, a forensic scientist. At that habeas trial, the petitioner claimed, inter alia, that G had improperly failed to present the testimony of an expert witness, such as D, to attack K's testimony. D, however, testified at the first habeas trial that the victim's wound could resemble a contact wound but that he could not conclude with certainty that the victim had sustained a contact wound. The habeas court denied the habeas petition, concluding that the petitioner had failed to establish that G rendered ineffective assistance. This court upheld the habeas court's decision, concluding that D had not contradicted K's opinion at the criminal trial that the victim's wound was a contact gunshot wound and that D's testimony would not have been helpful at the criminal trial to establish that the petitioner did not shoot the victim. At the second habeas trial, the petitioner presented the testimony of W, an expert in forensic pathology, who disagreed with K's conclusio