Summary
explaining that the doctrine of res judicata does not apply to habeas corpus proceedings
Summary of this case from Mallard v. Warden, N.H. State PrisonOpinion
No. 4004
Decided February 6, 1951
To be entitled to a writ of habeas corpus a person must be imprisoned or otherwise restrained of his personal liberty. Hence where one has already been released from imprisonment the question of whether he is entitled to the relief which he seeks by such a writ is moot. A refusal to grant a writ of habeas corpus or a dismissal of one is not res judicata on a subsequent application for such a writ. However, repeated applications for a writ of habeas corpus introducing no new facts material to the issue will ordinarily be summarily disposed of.
PETITION for writ of habeas corpus against the Warden of the New Hampshire State Prison, alleging that he is illegally detaining the petitioner. Some of the prior history of this case is to be found in Gobin v. Clarke, 94 N.H. 167 and in Petition of Oliver Gobin, 95 N.H. 532. The following is a summary of the pertinent facts.
At the February Term, 1935 for Cheshire County, the petitioner was indicted as an accessory to the crime of arson. On April 6, 1935 he was found guilty of that offense and sentenced to not less than seven years nor more than ten years in the State Prison to which he was committed on April 9, 1935. He was paroled December 28, 1939, having then served four years, eight months and nineteen days of his sentence. His parole was revoked for cause on November 18, 1942 and he was recommitted to serve the remainder of his maximum sentence. R. L., c. 429, ss. 35, 36. He was reparoled on July 17, 1947 after having served an additional four years, nine months and four days. His parole was again revoked on June 19, 1950. After serving the balance of his maximum sentence, he was discharged on December 26, 1950. This appeal was submitted to this court in January, 1951.
Petitioner's exception to the ruling by the Trial Court (Wescott J.) that the question of the legality of the original indictment was res judicata was reserved and transferred.
Oliver Gobin, pro se.
Gordon M. Tiffany, Attorney General and William S. Green, Deputy Attorney General, for the defendant.
A person must be imprisoned or otherwise restrained of his personal liberty to be entitled to a writ of habeas corpus. R. L., c. 406, s. 1; Van Meter v. Sanford, 99 F.2d 511; 39 C. J. S. 428; 25 Am. Jur. 158. Having been granted his release from imprisonment, the right of the petitioner to the relief he seeks is now a moot question. A determination thereof by this court has therefore become unnecessary and would serve no useful purpose. In re Halley, 327 Mich. 222; State ex rel. Magrum v. Nygaard, 38 N.W.2d 370 (1949).
Since this appeal the petitioner has filed three other petitions for a writ of habeas corpus in this same matter. One was filed August 3, 1950, another September 12, 1950, and another October 20, 1950. A refusal to grant a writ of habeas corpus or a dismissal of one is not res judicata on a subsequent application for such a writ. Sheehy v. Sheehy, 88 N.H. 223, 226. However, "repeated applications for a writ of habeas corpus introducing no new facts material to the issue will ordinarily be summarily disposed of." Petition of Moebus, 74 N.H. 213; U.S. ex rel. McCann v. Thompson, 144 F.2d 604, 606, cert. den., 323 U.S. 790; Salinger v. Loisel, 265 U.S. 224, 231; Ex parte Tidwell, 222 P.2d 760 (1950).
Petition dismissed.
JOHNSTON C.J., did not sit: the others concurred.