In Re Bocci

Petitioner herein applied for a writ of habeas corpus, alleging in his petition that he was being unlawfully “imprisoned, detained, confined and restrained of his liberty” by the marshal of the town of Lawndale, San Mateo County, under a charge of misdemeanor, to wit: Opening and keeping open on Sunday a place of business for the manufacture and sale of grave stones and monuments, in violation of an ordinance of said town, which ordinance, petitioner claims, is unconstitutional. The writ was issued, and in response thereto the marshal filed a return, from which it appears that at the time the application for this writ was made petitioner was neither imprisoned nor involuntarily restrained of his liberty.

With respect thereto, the return discloses that on the day the complaint was filed against petitioner in the town recorder’s court, which was about two weeks prior to the filing of the application for this writ, the recorder ordered petitioner released “on his own recognizance,” pending trial; and nothing further is set forth in the return to show that he was thereafter taken or ordered into custody. Moreover, the record does not show with any degree of certainty that petitioner…