I fully concur with Mr. Justice Clarke and simply wish to add a few words as to whether this question can be raised on habeas corpus. Upon the return to this writ the question presented to the Supreme Court is whether the relator was illegally detained in custody. Section 2031 of the Code of Civil Procedure provides that “ the court or judge, before which or whom a prisoner is brought by virtue of a writ of habeas corpus, issued as prescribed in this artióle, must, immediately after the return of the writ, examine into the facts alleged in the return, and into the cause of the imprison- " ment or restraint of the prisoner; and must make a final order to discharge him therefrom, if. no lawful cause for the imprisonment or restraint, or for the continuance thereof, is shown; whether the same was upon" a commitment for an actual or supposed criminal matter, or for some other cause.” If it appears, therefore, that the relator is restrained of his liberty, and no lawful cause for the imprisonment or restraint or for the continuance thereof is shown, he must be discharged. .
■ The return shows that the relator is imprisoned under a warrant of the Court of G-eneral'Sessions of the Peace based upon an indictment against him for the .crime of murder in the first degree. As a traverse to. this return it appeared' that the relator had been tried
*501upon that indictment and the jury discharged without a verdict or without stating that they were unable to agree, and as established by Mr. Justice Clarke in his opinion such a discharge of the jury was equivalent to an acquittal. The question before us, therefore, is whether a defendant having been committed to prison upon a bench warrant issued under" an indictment is illegally restrained under such a- warrant after he has been tried upon the indictment and acquitted. We are not reviewing a judgment of the court convicting the defendant after he had been acquitted. In may be assumed that where there was a final judgment or decree of a competent tribunal of civil or criminal jurisdiction and a prisoner was held under such a judgment that he could only review that judgment upon an appeal therefrom and not by a writ of habeas corpus under subdivision 2 of section 2032 of the Code of Civil Procedure. But here the defendant is held under a warrant issued by the Court of General Sessions based upon an indictment upon which a trial has been had subsequent to the commitment and the defendant in effect acquitted. After such an acquittal there was certainly no lawful cause for the continued imprisonment of the relator based upon the original warrant which had been issued on the indictment. In the case of People ex rel. Scharff v. Frost (198 N. Y. 110) the relator was held under a judgment of the Court of General Sessions, a court of competent jurisdiction. And it was held that in such a case the judgment standing unreversed the validity of the judgment could not be determined upon habeas corpus. But here the relator is held under a warrant based upon an indictment upon which a trial has been had "and the relator acquitted, and the defendant claims to hold the relator upon that warrant and that warrant only. Since the acquittal there has been no adjudication by the court that the relator should be continued in imprisonment nor is he held upon, any process of any court issued after his trial, and assuming that the discharge of the jury was equivalent to an acquittal I think the case is clearly brought ■ within section 2031 of the Code of Civil Procedure and the i'elator is entitled to his discharge.
Order affirmed.