LUIGI FLITO'S CASE

Habeas Corpus. Practice, Criminal, Complaint. The writ of habeas corpus will not be issued to take the place of an appeal, a bill of exceptions or a writ of error in a criminal case where the defendant has been tried by a court having jurisdiction of the crime with which he was charged and where the only question raised is in regard to the correctness of the rulings made at the trial in that court.

A prisoner, who has been sentenced for a crime after a trial before a court having jurisdiction of the offense charged and of the person of the defendant, will not be granted a writ of habeas corpus on the ground that the complaint on which he was tried and convicted was unlawful because the justice of the court who directed the issuing of the warrant upon the complaint did not examine the complainant and his witnesses under oath as prescribed by R.L.c. 217, § 22, before the complainant subscribed and swore to the complaint, but merely asked him for a statement of the facts relating to the charge, which the complainant gave orally and not under oath; because, even if such a complaint is defective and the prisoner could avail himself of the defect, which here was not intimated, the writ of habeas corpus has no application to such a case.

SHELDON, J.

The petitioner does not deny that the crime which he has committed was within the jurisdiction of the Municipal Court of the City of Boston, or that that court properly could receive a complaint and issue a warrant against him, and try him thereon when brought in upon due process.

His contention is that the complaint and the warrant were both invalid because there was not, before the written complaint was received, an examination on oath of the complainant and his witnesses. R.L.c. 217, § 22. St. 1866, c. 279, § 8. St. 1821, c. 109, § 2. Rev. Sts. c. 135, § 2. We do not intimate that there is anything in this contention, or that it could have availed the petitioner if it had been properly presented. R.L.c. 160, § 36. Commonwealth v. Farrell, 8 Gray, 463. And see Commonwealth v. Tay, 170 Mass. 192; Commonwealth v. Conlin, 184 Mass. 195, 197.

But, even if the contention were sound, this petition could not be maintained. The writ of habeas corpus is not to take the place of an appeal, a bill of exceptions, or a writ of error, in a case like this, which was within the jurisdiction of the court where it was tried, and in which the only question raised is as to the correctness of the rulings made in that court. Fleming v. Clark, 12 Allen, 191, 194. Sennott's case, 146 Mass. 489, 492. Commonwealth v. Huntley, 156 Mass. 236. Bishop, petitioner, 172 Mass. 35. Sellers' case, 186 Mass. 301.

Petition dismissed.