Callahan v. State, 60 Ala. 65

60 Ala. 65 | Ala. | 1877

STONE, J.

One of the most vital principles of Magna Charta declares, that ‘ no man shall be taken or imprisoned, but by the lawful judgment of his peers, or by the law of the land.’ In 1679, the habeas corpus act was enacted by the British Parliament, to furnish a sure and speedy remedy for every subject of the realm who was unlawfully deprived of his liberty. The Constitution of the United States, Art. I, sec. 9, subd. 2, ordains, that “ the privilege of the writ of habeas corpus shall not be suspended, unless when, in cases of rebellion or invasion, the public safety may require it.” The Constitution of Alabama, Declaration of Bights, §18, declares, “ that the privilege of the writ of habeas corpus shall not be suspended by the authorities of this State.” These cherished rights, so earnestly and perseveringly preserved in our organic law, have been made efficient by every legislative help, which an inbred love of personal liberty could from time to time suggest; so that now it is morally impossible that any citizen can be long restrained of his liberty, except by due course of law. And habeas corpus, by reason of the dignity of its office, has long since come to be styled the “ Writ of Liberty.”

The object of the writ of habeas corpus is, that a citizen, who is imprisoned, or otherwise restrained of his liberty, may have a judicial investigation of the cause of his imprisment — that he be restored to liberty, if confined without authority of law; and, if legally held, that he be admitted to bail, if his offense be bailable. This is the full measure of personal rights, which this great writ guarantees to every citizen.

Jefferson Callahan had been indicted by the grand jury of Blount county, for murder. Under a capias, issued by the clerk for his arrest, the sheriff had arrested him, and he was confined in jail to answer to said charge of murder, so found by the grand jury. Imprisoned under such charge, so found, no court was authorized to set him at liberty, unless on bail bond, or, possibly, on some other ground, not claimed or presented in this record. To be allowed to give bail, and then go at large, was, in his then condition, the highest hope he could entertain. He presented his petition to the judge of that circuit, at chambers, praying for the writ of habeas corpus. The prayer of his petition was, “that on the final hearing of the same, your Honor will be pleased to make an order admitting him to bail in the manner and form as the law in such cases directs.” He did not ask to be enlarged, except on bail, and did not aver he was illegally restrained of his liberty. The petition conformed to the statute, and entitled the petitioner to the writ. — Code of 1876, §§ 4936-7-8, 4940. If the writ had been granted, and the prisoner brought before the circuit judge, that officer would have heard the evidence, and, if it appeared the prisoner was charged with a public offense which was bailable, he would have admitted him to bail, on his offering sufficient bail; and if sufficient bail was not then offered by the prisoner, it would have been the duty of the circuit judge to indorse on' the warrant the amount of bail required, and the court to which the prisoner was required to appear ; and, in such case, the prisoner may be afterwards discharged by the sheriff of the county, on giving sufficient bail in the amount so required. — Code of 1876, § 4958 ; also, § 4957.

The petition of the prisoner for habeas corpus, mentioned above, was brought to the notice of the circuit judge, while be was holding the Fall term of the Circuit Court of Jackson county, in 1874. Accompanying the petition was the written consent of- the solicitor of Blount county, addressed to the circuit judge, in which he said, “ I am willing that bail may be fixed at $5,000. Considering his standing, and the magnitude of the crime charged against him, I think that amount very reasonable.” The circuit judge indorsed on the petition for habeas corpus the following order:

“Circuit Court, Jackson county, Ala., Fall term, 1874. Comes the solicitor of Blount county, and by consent agrees that the petitioner, the said Thomas J. Callahan, be admitted to bail in the sum of five thousand dollars ($5,000), and waiving an investigation. The sheriff of said county will discharge the defendant from custody, upon his giving bond and security in the sum of five thousand dollars, conditioned as the law directs.”

(Signed) “W. J. H-,

“ Judge of the Circuit Court.”

These papers — petition of the prisoner, with the judge’s indorsement thereon, and the consent of the solicitor — were filed in the office of the clerk of the Circuit Court of Blount county ; and thereupon, the sheriff took and approved the bail-bond, which corresponds substantially with the statute, and with the order of the circuit judge.

We have several decisions, made under our former statutes —the one mentioned above included — on the authority of which it is contended, that the bail-bond in the present record was taken without authority of law, and, consequently, the judgment must be reversed. — See Butler v. Foster, 14 Ala. 323; Governor v. Jackson, 15 Ala. 703; Hale v. The State, 24 Ala. 80; Arnold v. The State, 25 Ala. 69; Antonez v. The State, 26 Ala. 81. See, also, Nat Gray v. The State, 43 Ala. 41. We think it doubtful whether the present judgment should be reversed, if it stood alone on sections 4957-8 of the Code of 1876; for it is questionable if the prisoner must not be regarded as having obtained the order for bail, and given Ms bond, under proceedings in habeas corpus. The order gave him all he asked, or was entitled to, even if there had been a trial on habeas corptis before the judge, and a decision favorable to his wishes. — See section 4958, Code of 1876. The concession and waiver of the solicitor were made in the interest of the prisoner, and relieved him of delay, if not of expense and trouble. But we need not decide this.

All our decisions cited above, except that of Nat Gray's case, were made before the enactment of the statute hereinafter copied, and under the principles found in the chapter on bail in criminal cases, in the Code of 1852, page 648. A later statute enacts, that “ circuit and city judges may, during term time, by order entered on the minutes, fix the amount of bail required in all cases of bailable felonies pending in the court, and direct the sheriff to take bail accordingly in vacation ; and in like manner, when an application for bail is made to any judge or chancellor in vacation, such judge or chancellor may fix the amount of bail required, and authorize the sheriff to take bail accordingly.” — Code of 1867, §4241; Code of 1876, §4849. The section above is independent of the provision for bail on habeas corpus — section 4958 — and is found under the head of “Bail in criminal cases.” The last clause of this section expressly authorizes an application to be admitted to bail, to be made to any judge or chancellor in vacation, and empowers such judge or .chancellor to fix the amount of bail, and authorize the sheriff to take the bond. The petition for habeas corpus was virtually an application to be admitted to bail; for, being imprisoned under an indictment for murder, bail was the highest benefit and privilege the law allowed him to have. This fully justified, and will uphold, as strictly legal, the order made by the circuit judge, and the bond taken by the sheriff thereunder.

The rulings in the several cases of U. S. v. Goldstein, 1 Dillon, 413; U. S. v. Horton, 2 Dill. 94, and U. S. v. Rundlett, 2 Curtis, 41, resting, as they do, on the illegality of the several bail-bonds, and proceedings under them, are not opposed to the views above.

Judgment of the Circuit Court affirmed.