(concurring specially) .
I concur in vacating the order releasing the plaintiff for the reason that there is no showing that there was either perjury or willful suppression of evidence material to the crime with which the plaintiff here was charged.
I think it is important to observe that even if there had been some impropriety of the character plaintiff claims, the order should not have been for his outright release. If such an order were proper, this anomaly would result: if a defendant convicted of a crime took his appeal within the time and in accordance with the requirements of the law, and showed substantial error, he would not be freed, but would be granted a new trial. See State v. Lawrence, 1951, 120 Utah 323, 234 P. 2d 600 and authorities there cited. But if a defendant permitted the time for appeal to go by and then brought such a proceeding as this, and substantial error were found, he would be set free.
*315It should he kept in mind that the use of •such a writ for collateral attack upon a judgment .runs crossgrain to the usual and established procedures of the law. The utmost caution and forbearance should he observed to avoid the incongruity above stated and to see that the writ is used in aid of the administration of justice and not to abuse or embarrass it. See statement in Reffkin v. Mayo, 1934, 115 Fla. 214, 155 So. 674. To this purpose, even when the court deems that due process of law has been so denied or abused that the writ of habeas corpus should be granted, the proper order is not necessarily the complete release of the defendant.
I appreciate the reasoning that the judgment should be regarded as a nullity before such a writ is warranted, and that some illogic may be confronted in holding a defendant after his conviction is so declared. However, the expanding notion of some of our courts as to the function of post-conviction writs in practical effect turns them into writs of error, which the writer protests is a misconception of the purpose and a misuse of such a writ. Nevertheless, the facts of life must be reckoned with, and in my opinion a necessary concomitant of that view is that there should only be a remand to the proper custodial officer or to the court having jurisdiction because this is necessary to avoid the palpable distortion of the processes of justice which may result from freeing the accused entirely.
The subject was dealt with by the California Supreme Court in the case of Ex parte McCoy, 1948, 32 Cal.2d 73, 194 P.2d 531, 533. It held McCoy’s conviction invalid because he had been denied the right of counsel. In considering whether he should be set free or remanded to stand trial, the court placed emphasis on Section 1484 of the California penal code, which provides that in habeas corpus, “ * * * the court or judge must * * * dispose of such party as the justice of the case may require * * (emphasis added) and quoted from previous cases that, “A violation of the defendant’s constitutional rights during the trial * * * is ground, for attack on the judgment in a habeas corpus proceeding if the petitioner has no other adequate remedy,” which McCoy did not have, because the time for appeal had expired. It further stated that the subsequent malfunction of officers depriving the trial court of jurisdiction to convict and sentence him, “did not acquit him of the offense, and he is still subject to being tried upon any valid charge made against him in the complaint.”
Another case illustrating this point is that of Selbe v. Hudspeth, 1953, 175 Kan. 154, 259 P.2d 204, 207. The court said that even though the trial court was without jurisdiction to accept the petitioner’s *316plea of guilty, and that the sentence imposed was a nullity, “that however does not mean that petitioner is entitled to his unrestrained liberty. The order of this court is that the plea of guilty and the judgment sentencing petitioner * * * be * * * set aside and that respondent deliver the petitioner to the sheriff of Cowley County for return to that county for further procedure in harmony herewith.”
It is significant that our Rule 65B(f) relating to habeas corpus does not provide that when “it appears that a person is unjustly imprisoned or restrained of his liberty” he shall be discharged, but provides that in such instance, “appropriate relief shall * * * be granted.” (Emphasis added.) It is obvious that "appropriate relief” would not always be to exonerate the defendant. But in many instances it would be a remand to the proper custodial officer, as in the Selbe case, supra, or to the court having jurisdiction, as in the McCoy case, supra, for whatever further proceedings seem necessary and just in the premises. See also 39 C.J.S. Habeas Corpus § 102, p. 688 for text statement and numerous authorities cited to-this effect. This conclusion is also supported by Section 78-35-3, U.C.A.1953, which provides that no person discharged' upon habeas corpus shall be again restrained except: “(2) If after discharge-for defect [of] proof * * * the prisoner is again arrested on sufficient proof and committed by legal process for the-same offense.”
Sometimes the interests of justice would be served by a remand to correct a defect in the record, such as taking a proper plea, imposing a proper sentence, correcting a commitment, or something of that character. If so, there should be a remand so that purpose could be accomplished' rather than the outright release of the defendant. This would avoid the thwarting of justice which might occur in setting at large one who has been convicted of a crime and who may have further potential for doing so, merely because some-error or omission has occurred in the proceedings against him. Justice demands-that the interest of the public, as well as. of the accused, be safeguarded. As Justice Cardozo said in Snyder v. Massachusetts, 1934, 291 U.S. 97, 122, 54 S.Ct. 330, 338, 78 L.Ed. 674. “Justice, though due to-the accused, is due to the accuser also. The-concept of fairness must not be strained til! it is narrowed to a filament. We are to-keep the balance true.”