¶1— Harlan C. Turner was arrested and brought before a justice of the peace of Bates county for examination on a charge of having murdered one J. W. McYey. At the conclusion of the evidence on such examination, the magistrate committed him to jail without bail to await the action of the grand jury for Bates county.
¶2Afterwards, he applied for and obtained, a writ of habeas corpus from the Honorable D. A. DeAkmond, judge of the circuit court within and for Bates county. On a hearing before said judge, at chambers, bail was refused and the prisoner was remanded to be held and detained under the warrant of commitment issued by the magistrate.
¶3Afterwards application was made to the presiding judge of this court at chambers for another writ of *77habeas corpus which was issued and made returnable to this court in session. The return of the sheriff of Rates county discloses the foregoing facts.
¶4Counsel for the state interpose the plea of res adjudícala on the ground that the return discloses this to be a second writ of habeas corpus, and that on the first, writ, the prisoner was remanded for an offense adjudged not bailable.
¶5The question is governed by the following section of the statute, 1879. “ Sec. 2672. Proceedings on second writ. — If a prisoner, remanded under the provisions of this chapter, shall obtain a second writ of habeas corpus> it shall be the duty of the officer, or other person on whom the same shall be served, to return therewith the order remanding the prisoner, and if it appear that the prisoner was remanded for an offense adjudged not bailable, the prisoner shall be forthwith remanded, without, further proceedings.”
¶6However, the question may be considered, in cases outside the purview of this statute, where the successive-applications are made to superior courts, we are not at liberty, in a case falling within its terms, to depart from its plain expression.
¶7We therefore hold the point to be well taken, and remand the prisoner to be held under and by the terms, of the warrant issued by the committing magistrate.