(concurring).
I join in the decision of the court and share the views expressed by Judge GOODRICH. However, I attach such importance to what is stated in the short paragraph of the opinion of the court which is supported by footnote 4 that I think it worthwhile, though certainly-not essential, to elaborate in concurring opinion Judge GOODRICH’S succinct statement of the point.
Unique procedure characterizes the administration of the remedy of habeas corpus. When a court with jurisdiction of the subject matter receives a petition for habeas corpus which is not inadequate on its face, normal procedure is to issue a writ of habeas corpus, ordering the person who is detaining the petitioner to bring him before the court for hearing and decision whether he is ■ unlawfully deprived of his liberty. The district court issued such an order here and in obedience thereto the state warden produced his prisoner.
At that juncture the body of the petitioner came under the lawful control of the district court. In legal contemplation that control continues pending decision whether to free the petitioner or to return him to state custody. During that period detention is by force of the writ of habeas corpus, and the antecedent detaining authority is superseded for the time being.
.Normally, where the petitioner is a prisoner serving a sentence upon conviction of crime, the court before which he is brought by writ of habeas corpus directs the warden to hold him until the court can decide the case. But this procedure is not in derogation of the controlling concept that the body is being held pendente lite under authority and subject to order of the court which has issued the writ. Once this concept is recognized, it becomes clear that the particular interim disposition which the court makes of the body is a judicial function of that court to be discharged, absent any controlling statute, in the exercise of judicial discretion, all relevant circumstances considered. The court is under no ministerial duty to direct or permit, the person who produces the petitioner to continue to hold him during this period.
True, the fact that a prisoner is under a final conviction and sentence precludes any presumption of innocence pending decision on habeas corpus. This is one important consideration militating very strongly against interim release from confinement. Moreover, the sensitivity of the states to federal interposition, however lawful, in cases involving state prisoners usually leads a federal court to choose the state warden as the officer who shall hold such a petitioner for the court just as he did under the state commitment. On the other hand, in the present case the grave exigency of the prisoner’s health which impressed the district court constituted a substantial countervailing consideration. Thus, the district court was compelled to and did exercise its best judgment as to which of the opposing factors outweighed, the others. This process resulted in a decision to allow the prisoner to be hospitalized on bail rather than to require his return to state prison pending decision.
Such considered exercise of judgment on a matter within judicial province is far removed from that arbitrary abuse of power which- may be controlled by the extraordinary writs of prohibition and mandamus.
Judge GOODRICH and Judge STA-LEY have authorized me to state that they agree with what is said in this concurring opinion.