(1) If any person is committed or detained for any criminal or supposed criminal matter, it is lawful for him to apply to the supreme or district courts for a writ of habeas corpus, which application shall be in writing and signed by the prisoner or some person on his behalf setting forth the facts concerning his imprisonment and in whose custody he is detained, and shall be accompanied by a copy of the warrant of commitment, or an affidavit that the said copy has been demanded of the person in whose custody the prisoner is detained, and by him refused or neglected to be given. The court to which the application is made shall forthwith award the writ of habeas corpus, unless it appears from the petition itself, or from the documents annexed, that the party can neither be discharged nor admitted to bail nor in any other manner relieved. Said writ, if issued by the court, shall be under the seal of the court, and directed to the person in whose custody the prisoner is detained, and made returnable forthwith.
(2) To the intent that no officer, sheriff, jailer, keeper, or other person to whom such writ is directed may pretend ignorance thereof, every writ shall be endorsed with the words "by the habeas corpus act". When the writ is served by any person upon the sheriff, jailer, or keeper, or other person to whom the same is directed, or brought to him, or left with any of his underofficers or deputies at the jail or place where the prisoner is detained, he or some of his underofficers or deputies, upon payment or tender of the charges of bringing the said prisoner, to be ascertained by the court awarding the said writ and endorsed thereon not exceeding fifteen cents per mile and upon sufficient security given to pay the charges of carrying him back if he is remanded, shall make return of the writ and bring, or cause to be brought, the body of the prisoner before the court which granted the writ and certify the true cause of his imprisonment within three days thereafter, unless the commitment of such person is in a place beyond the distance of twenty miles from the place where the writ is returnable; if it is beyond the distance of twenty miles and not above one hundred miles, the writ shall be returned within ten days and, if beyond the distance of one hundred miles, within twenty days after the delivery of the writ, and not longer.
Source: R.S. p. 352, § 1. G.L. § 1323. G.S. § 1609. R.S. 08: § 2917. C.L. § 6486.
CSA: C. 77, § 1. CRS 53: § 65-1-1. C.R.S. 1963: § 65-1-1.
Cross references: For the constitutional bar to suspension of habeas corpus, see § 21 of art. II, Colo. Const.; for the availability of writ, see C.R.C.P. 106(a).
Petition for relief - civil cases. When any person not being committed or detained for any criminal or supposed criminal matter is confined or restrained of his liberty under any color or pretense whatever, he may proceed by appropriate action as prescribed by the Colorado rules of civil procedure in the nature of habeas corpus which petition shall be in writing, signed by the party or some person on his behalf, setting forth the facts concerning his imprisonment and wherein the illegality of such imprisonment consists, and in whose custody he is detained. The petition shall be verified by the oath or affirmation of the party applying or some other person on his behalf. If the confinement or restraint is by virtue of any judicial process or order, a copy thereof shall be annexed thereto or an affidavit made that the same has been demanded and refused. The same proceedings shall thereupon be had in all respects as are directed in section 13-45-101.
Source: R.S. 353, § 2. G.L. § 1324. G.S. § 1610. R.S. 08: § 2918. C.L. § 6487. CSA: C. 77, § 2. CRS 53: § 65-1-2. C.R.S. 1963: § 65-1-2.
Hearing - pleadings - discharge. (1) Upon the return of the writ of habeas corpus, a day shall be set for the hearing of the cause of imprisonment or detainer not exceeding five days thereafter, unless the prisoner requests a longer time. The prisoner may deny any of the material facts set forth in the return or may allege any fact to show either that the imprisonment or detention is unlawful or that he is then entitled to his discharge, which allegations or denials shall be made on oath. The return may be amended by leave of the court, before or after the same is filed as also may all suggestions made against it, that thereby all material facts may be ascertained. The court shall proceed in a summary way to settle the facts by hearing the testimony and arguments of all parties interested civilly, if there are any, as well as of the prisoner and the person who holds him in custody and shall dispose of the prisoner as the case may require.
(2) If it appears that the prisoner is in custody by virtue of process from any court legally constituted, he can be discharged only for some of the following causes:
Where the court has exceeded the limit of its jurisdiction, either as to the matter,place, sum, or person;
Where, though the original imprisonment was lawful, yet by some act, omission, orevent which has subsequently taken place, the party has become entitled to his discharge;
Where the process is defective in some substantial form required by law;
Where the process, though in proper form, has been issued in a case or under circumstances where the law does not allow process or orders for imprisonment or arrest to issue;
Where, although in proper form, the process has been issued or executed by a personeither unauthorized to issue or execute the same or where the person having the custody of the prisoner under such process is not the person empowered by law to detain him;
Where the process appears to have been obtained by false pretense or bribery;
Where there is no general law, nor any judgment, order, or decree of a court toauthorize the process, if in a civil suit, nor any conviction if in a criminal proceeding.
(3) No court on the return of a habeas corpus shall inquire into the legality or justice of a judgment or decree of a court legally constituted, in any other manner. In all cases where the imprisonment is for a criminal or supposed criminal matter, if it appears to the court that there is sufficient legal cause for the commitment of the prisoner although such commitment may have been informally made, or without due authority, or the process may have been executed by a person not authorized, the court shall make a new commitment, in proper form and directed to the proper officer, or admit the party to bail if the case is bailable.
Source: R.S. p. 353, § 3. G.L. § 1325. G.S. § 1611. R.S. 08: § 2919. C.L. § 6488. CSA: C. 77, § 3. CRS 53: § 65-1-3. C.R.S. 1963: § 65-1-3.
Witnesses - duty of sheriff. When a habeas corpus is issued to bring the body of any prisoner committed as aforesaid, unless the court issuing the same deems it wholly unnecessary and useless, the court shall issue a subpoena to the sheriff of the county where said person is confined, commanding him to summon the witnesses therein named to appear before the court at the time and place where such habeas corpus is returnable. It is the duty of the sheriff to serve such subpoena, if it is possible, in time to enable such witnesses to attend. It is the duty of the witnesses thus served with said subpoena to attend and give evidence before the court issuing the same on pain of being deemed guilty of a contempt of court and proceeded against accordingly by said court.
Source: R.S. p. 253, § 243. G.L. § 848. G.S. § 989. R.S. 08: § 2920. C.L. § 6489. CSA: C. 77, § 4. CRS 53: § 65-1-4. C.R.S. 1963: § 65-1-4.
Court to examine witnesses. On the hearing of any habeas corpus, it is the duty of the court who hears the same to examine the witnesses aforesaid, and such other witnesses as the prisoner may request, touching any offense named in the warrant of commitment whether or not said offense is technically set out in the commitment.
Source: R.S. p. 254, § 244. G.L. § 849. G.S. § 990. R.S. 08: § 2921. C.L. § 6490. CSA: C. 77, § 5. CRS 53: § 65-1-5. C.R.S. 1963: § 65-1-5.
Bail - recognizance - binding witness. (1) When any person is admitted to bail on habeas corpus, he shall enter into recognizance with one or more securities in such sum as the court directs, having regard to the circumstances of the prisoner and the nature of the offense, conditioned upon his appearance at the district court held in and for the county where the offense was committed or where the same is to be tried. Where any court admits to bail or remands any prisoner brought before it on any writ of habeas corpus, it is the duty of the court to bind all such persons who declare anything material to prove the offense with which the prisoner is charged by recognizance to appear at the proper court having cognizance of the offense, upon a date certain, to give evidence touching the offense and not to depart the court without leave.
(2) The recognizance so taken, together with the recognizance entered into by the prisoner when he is admitted to bail, shall be certified and returned to the proper court. If any such witness neglects or refuses to enter into a recognizance when required, it is lawful for the court to commit him to jail until he enters into such recognizance or he is otherwise discharged by due course of law. If any judge neglects or refuses to bind any such witness or prisoner by recognizance when taken as aforesaid, he is guilty of a misdemeanor in office and shall be proceeded against accordingly.
Source: R.S. p. 354, § 4. G.L. § 1326. G.S. § 1612. R.S. 08: § 2922. C.L. § 6491. CSA: C. 77, § 6. CRS 53: § 65-1-6. C.R.S. 1963: § 65-1-6.
Remand - second writ - offenses not bailable. When any prisoner brought up on a habeas corpus is remanded to prison, it is the duty of the court remanding him to make out and deliver to the sheriff, or other person to whose custody he is remanded, an order in writing stating the cause of remanding him. If such prisoner obtains a second writ of habeas corpus, it is the duty of such sheriff or other person to whom the same is directed to return therewith the order aforesaid. If it appears that the prisoner was remanded for any offense not bailable, it shall be taken and received as conclusive, and the prisoner shall be remanded without further proceedings.
Source: R.S. p. 355, § 5. G.L. § 1327. G.S. § 1613. R.S. 08: § 2923. C.L. § 6492. CSA: C. 77, § 7. CRS 53: § 65-1-7. C.R.S. 1963: § 65-1-7.
Second writ - bailable offense. It is unlawful for any court, on a second writ of habeas corpus obtained by the prisoner to discharge the prisoner if he is clearly and specifically charged in the warrant of commitment with a criminal offense; but the court on the return of such second writ has power only to admit such prisoner to bail, where the offense is bailable by law, or remand him to prison where the offense is not bailable or where such prisoner fails to give the bail required.
Source: R.S. p. 355, § 6. G.L. § 1328. G.S. § 1614. R.S. 08: § 2924. C.L. § 6493. CSA: C. 77, § 8. CRS 53: § 65-1-8. C.R.S. 1963: § 65-1-8.
Once discharged - reimprisonment. (1) No person who has been discharged by order of a court on a habeas corpus shall be again imprisoned, restrained, or kept in custody for the same cause, unless he is afterwards indicted for the same offense or unless by the legal order or process of the court wherein he is bound by recognizance to appear.
(2) The following shall not be deemed to be the same cause:
If, after a discharge for a defect of proof or on any material defect in the commitmentin a criminal case, the prisoner is again arrested on sufficient proof and committed by legal process for the same offense;
If, in a civil suit, the party has been discharged for any illegality in the judgment orprocess and is afterwards imprisoned by legal process for the same cause of action;
Generally, when the discharge has been ordered on account of the nonobservance ofany of the forms required by law, the party may be a second time imprisoned if the cause is legal and the forms required by law observed.
Source: R.S. p. 355, § 7. G.L. § 1329. G.S. § 1615. R.S. 08: § 2925. C.L. § 6494.
CSA: C. 77, § 9. CRS 53: § 65-1-9. C.R.S. 1963: § 65-1-9.
Prisoner not to be removed - when. To prevent any person from avoiding or delaying his trial, it is unlawful to remove any prisoner on habeas corpus under this article out of the county in which he is confined within fifteen days next preceding the date certain set for trial except if it is to convey him into the county where the offense with which he stands charged is properly cognizable.
Source: R.S. p. 356, § 9. G.L. § 1331. G.S. § 1617. R.S. 08: § 2927. C.L. § 6495. CSA: C. 77, § 10. CRS 53: § 65-1-10. C.R.S. 1963: § 65-1-10.
Removal of prisoners - causes. Any person committed to any prison or in the custody of any officer, sheriff, jailer, keeper, or other person, or his underofficer or deputy, for any criminal or supposed criminal matter shall not be removed from the prison or custody into any other prison or custody, unless it is by habeas corpus or some other legal writ; or where the prisoner is delivered to some common jail; or is removed from one place to another within the county, in order to effect his discharge or trial in due course of law; or in case of sudden fire, infection, or other necessity; or where the sheriff commits such prisoner to the jail of an adjoining county for the want of a sufficient jail in his own county, as provided in section 17-26119, C.R.S.; or where the prisoner, in pursuance of a law of the United States, is claimed or demanded by the executive of the United States or territories. If any person, after such commitment, makes out, signs, or countersigns any warrant for such removal except as before excepted, then he shall forfeit to the prisoner or aggrieved party a sum not exceeding three hundred dollars to be recovered by the prisoner or party aggrieved in the manner provided in section 13-45-117.
Source: R.S. p. 356, § 10. G.L. § 1332. G.S. § 1618. R.S. 08: § 2928. C.L. § 6496. CSA: C. 77, § 11. CRS 53: § 65-1-11. C.R.S. 1963: § 65-1-11. L. 79: Entire section amended, p. 1634, § 23, effective July 19.
Judge refusing or delaying writ - penalty. Any judge of a court empowered by this article to issue writs of habeas corpus who corruptly refuses to issue such writ when legally applied for in a case where such writ may lawfully issue or who, for the purpose of oppression, unreasonably delays the issuing of such writ shall for every such offense forfeit to the prisoner or party aggrieved a sum not exceeding five hundred dollars.
Source: R.S. p. 356, § 11. G.L. § 1333. G.S. § 1619. R.S. 08: § 2929. C.L. § 6497. CSA: C. 77, § 12. CRS 53: § 65-1-12. C.R.S. 1963: § 65-1-12.
Failure to obey writ - penalty. If any officer, sheriff, jailer, keeper, or other person to whom any such writ is directed neglects or refuses to make the returns or to bring the body of the prisoner according to the command of said writ within the time required by this article, such officer, sheriff, jailer, keeper, or other person is guilty of contempt of the court which issued said writ; whereupon the court shall issue an attachment against such officer, sheriff, jailer, keeper, or other person and cause him to be committed to the jail of the county, there to remain without bail, until he obeys the writ. Such officer, sheriff, jailer, keeper, or other person shall also forfeit to the prisoner or aggrieved party a sum not exceeding five hundred dollars and shall be incapable of holding or executing his said office.
Source: R.S. p. 357, § 12. G.L. § 1334. G.S. § 1620. R.S. 08: § 2930. C.L. § 6498. CSA: C. 77, § 13. CRS 53: § 65-1-13. C.R.S. 1963: § 65-1-13.
Avoiding writ - penalty. Anyone having a person in his or her custody or under his or her restraint, power, or control for whose relief a writ of habeas corpus is issued who, with the intent to avoid the effect of such writ, transfers such person to the custody, or places him or her under the control, of another or conceals him or her or changes the place of his or her confinement with intent to avoid the operation of such a writ or with intent to remove him or her out of this state commits a class 6 felony and shall be punished as provided in section 181.3-401, C.R.S. In any prosecution for the penalty incurred under this section, it shall not be necessary to show that the writ of habeas corpus had issued at the time of the removal, transfer, or concealment therein mentioned if it is proved that the acts therein forbidden were done with the intent to avoid the operation of such writ.
Source: R.S. p. 357, § 13. G.L. § 1335. G.S. § 1621. R.S. 08: § 2931. C.L. § 6499. CSA: C. 77, § 14. CRS 53: § 65-1-14. L. 62: p. 170, § 1. C.R.S. 1963: § 65-1-14. L. 77: Entire section amended, p. 877, § 43, effective July 1, 1979. L. 89: Entire section amended, p. 827, § 32, effective July 1. L. 2002: Entire section amended, p. 1488, § 123, effective October 1.
Editor's note: The effective date for amendments made to this section by chapter 216, L. 77, was changed from July 1, 1978, to April 1, 1979, by chapter 1, First Extraordinary Session, L. 78, and was subsequently changed to July 1, 1979, by chapter 157, § 23, L. 79. See People v. McKenna, 199 Colo. 452, 611 P.2d 574 (1980).
Cross references: For the legislative declaration contained in the 2002 act amending this section, see section 1 of chapter 318, Session Laws of Colorado 2002.
Failure to deliver process - penalty. (Repealed)
Source: R.S. p. 357, § 14. G.L. § 1336. G.S. § 1622. R.S. 08: § 2932. C.L. § 6500. CSA: C. 77, § 15. CRS 53: § 65-1-15. C.R.S. 1963: § 65-1-15. L. 91: Entire section repealed, p. 428, § 1, effective May 24.
Detention after release - penalty. Any person, knowing that another has been discharged by order of a competent tribunal on a habeas corpus, who, contrary to the provisions of this article, arrests or detains him again, for the same cause which was shown on the return of such writ, shall forfeit five hundred dollars for the first offense and one thousand dollars for every subsequent offense.
Source: R.S. p. 357, § 15. G.L. § 1337. G.S. § 1623. R.S. 08: § 2933. C.L. § 6501.
CSA: C. 77, § 16. CRS 53: § 65-1-16. C.R.S. 1963: § 65-1-16.
Forfeitures go to use of prisoner. All pecuniary forfeitures under this article shall inure to the use of the party for whose benefit the writ of habeas corpus issued and shall be sued for and recovered, with costs, in the name of the state by every person aggrieved.
Source: R.S. p. 357, § 16. G.L. § 1338. G.S. § 1624. R.S. 08: § 2934. C.L. § 6502. CSA: C. 77, § 17. CRS 53: § 65-1-17. C.R.S. 1963: § 65-1-17.
Cross references: For actions in the name of the state for the benefit of another, see C.R.C.P. 17(a).
Recovery of forfeiture not bar to civil suit. The recovery of the said penalties shall not be a bar to a civil suit for damages.
Source: R.S. p. 358, § 18. G.L. § 1340. G.S. § 1626. R.S. 08: § 2936. C.L. § 6504. CSA: C. 77, § 19. CRS 53: § 65-1-18. C.R.S. 1963: § 65-1-18.
Writ to testify or be surrendered - run to any county - copy - fees. The supreme and district courts within this state have power to issue writs of habeas corpus to bring the body of any person confined in any jail before them to testify or to be surrendered in discharge of bail. When a writ of habeas corpus is issued to bring into court any person to testify, or the principal to be surrendered in discharge of bail and such principal or witness is confined in any jail in this state out of the county in which such principal or witness is required to be surrendered or to testify, the writ may run into any county in this state and there be executed and returned by any officer to whom it is directed. The principal, after being surrendered or his bail discharged, or a person testifying as aforesaid shall be returned by the officer executing such writ by virtue of an order of the court for the purpose aforesaid, an attested copy of which, lodged with the jailer, exonerates such jailer of liability for an escape. The party praying out such writ of habeas corpus shall pay to the officer executing the same a reasonable sum for his services as adjudged by the courts respectively.
Source: R.S. p. 358, § 19. G.L. § 1341. G.S. § 1627. R.S. 08: § 2937. C.L. § 6505.
CSA: C. 77, § 20. CRS 53: § 65-1-19. C.R.S. 1963: § 65-1-19.
When county court can issue writ. (Repealed)
Source: L. 1879: p. 84, § 1. G.S. § 1628. R.S. 08: § 2938. CSA: C. 77, § 21. CRS 53: § 65-1-20. C.R.S. 1963: § 65-1-20. L. 75: Entire section repealed, p. 209, § 23, effective July 16.
Powers of county court. (Repealed)
Source: L. 1879: p. 84, § 2. G.S. § 1629. R.S. 08: § 2939. C.L. § 6507. CSA: C. 77, § 22. CRS 53: § 65-1-21. C.R.S. 1963: § 65-1-21. L. 75: Entire section repealed, p. 209, § 23, effective July 16.