47 So. 329 | Ala. | 1908
Lead Opinion
In our opinion the prisoner should be discharged. The affidavit exhibited with the petition, to which, alone, on this record, the attaching of the jurisdiction of the justice of the peace can be referred, and out of a hearing of which the mittimus presented by the sheriff issued, omitting other unimportant features, avers that the affiant “has cause to believe and does believe that in Ms opinion” (italics supplied) the defendant unlawfully delivered liquor in a prohibitory district. — In Butler’s Case, 130 Ala. p. 129, 30 South. 338, treating a practically similar affidavit, it was said: “Such a complaint-will not support the judgment of the justice, nor the statement filed by the solicitor in the county court, nor the judgment of the county court. * * * No valid judgment can be rendered on this complaint.” — Johnson’s Case, 82 Ala. 29, 2 South. 466; Miles’ Case, 94 Ala. 106, 11 South. 403. Butler was discharged here. If a valid judgment could not be rendered on a trial upon such a complaint, certainly a mittimus issued would be likewise a nullity. The reason underlying this ruling is that jurisdiction does not attach.
The prisoner must be discharged, as is expressly provided by the statute: “(3) Where the process is void in consequence of some defect in matter or substance
Dissenting Opinion
(dissenting.) I cannot concur in the views of the majority of the court, as expressed in the opinion of Justice McOLELLAN in this case. In my opinion the majority have misconceived the law of the case, and the doctrine asserted, if adhered to, will lead to dangerous consequences in the administration ■of the criminal law. The petitioner for writ of habeas corpus, appellant here, was tried before a committing magistrate, on preliminary investigation, for the violation of a criminal statute, and upon such trial and investigation was, in default of bail, committed to jail to await the action of the grand- jury. While in the custody of the sheriff under a mittimus in all respects regular on its face, issued by the committing magistrate, the appellant made application by petition to the circuit judge for his (the petitioner’s) discharge on habeas corpus. In response to the writ, the sheriff made return setting forth the mittimus which he held and detained the prisoner. The sheriff also included in the return made by him to the writ the affidavit and warrant upon which the prisoner had been arrested and taken before the committing magistrate for preliminary hearing. The inclusion of the affidavit and warrant in the sheriff’s return was wholly unnecessary, and it needs no argument to demonstrate that their inclusion in such return could in no sense affect the lawful custody of
The cause Avas heard before the circuit judge on the petition, the sheriff’s return thereto, and an agreed statement of facts (all of Avkich will be set out by the reporter in his report of this case), and on such hearing the circuit judge made an order refusing to discharge the prisoner and remanding him to the custody of the sheriff. This judgment is here reversed by this court, and one is rendered discharging the petitioner; and in support of this ruling of the majority of the court, subdivision 3 of section 4838 of the Code of 1896 is cited, as also the following of our cases. — Butler v. State, 130 Ala. 127, 30 South. 338; Johnson v. State, 82 Ala. 29, 2 South. 466; Miles v. State, 94 Ala. 106, 11 South. 403. These cases, and others like them that might have been cited, in my opinion, have no application in principle whatever to the case before us. Each of these cases is an appeal from the judgment of conviction and sentence on final trial. Such is not the case here. The judgments Avere in those cases held invalid, not because of a want of jurisdiction in the court of the person or of the offense charged or attempted to be charged, but because the affidavit or complaint charged no offense. The proceedings in those cases were upon final trial of the accused, and in which the court assumed jurisdiction to final judgment of conviction. They were had under chapter 142, p. 237, of the Criminal Code of 1896, wherein a procedure is prescribed, and Avhere, under section 4600, it is provided that the affidavit shall be in writing, and Avhat shall be stated in the affidavit. In the case before us the proceedings before the magistrate were not of final jurisdiction to try the
In the opinion of the majority of the court it is stated that: “The affidavit exhibited ¡with the petition, to which alone * * the attaching of the jurisdiction of the justice of the peace can be referred and nut. of a hearing of which the mittimus presented by the sheriff issued, omitting other unimportant features, avers that the affiant has cause to beiieve and does believe that in Ms opinion (italics supplied) the defendant unlawfully delivered liquor in a prohibitory district.” The opinion then proceeds to state, citing Butler’s Case, that such a complaint will not support the judgment of the justice, and from this reasons to the conclusion that the mittimus is a nullity. The fallacy of the position of the majority lies in the erroneous supposition that the proceedings before the magistrate were had under the provisions of chapter 112 of the Criminal Code, and in a misapprehension of the question of jurisdiction. The committing magistrate certainly had jurisdiction of the person, for the prisoner was before him during the preliminary trial’, and there can be no doubt of his jurisdiction as a committing magistrate of the subject-matter of the offense charged.
Turning to chapter 178, p. 103, Or. Code 1896, subject, “Preliminary Proceedings,”- section 5201 is as follows : “Definition of Complaint is an allegation, made before a proper magistrate, that a person has been guilty of a designated public offense.” The next section (5205) reads as follows: “Upon a complaint being made to any one of the magistrates specified in section 5161 (1680) that such offense has, in the opinion of- the complainmt (italics supplied), been committed, the magis
It is to be noted that the complaint is not required to be in writing. Here, however, the complaint, in form an affidavit, was in writing, and met every requirement of section 5205 as to necessary statements to be made in such complaint, and more besides. The majority of the court condemn the affidavit here, because the affiant avers that “in his opinion” an offense has been committed, yet this is the language of the statute in a complaint in a preliminary proceeding, as is the case here. Moreover, as stated above, the affidavit and warrant were functus officio. The mittimus was the process under which the sheriff lawfully detained the prisoner. An irregularity in some other process or proceeding, back of the mittimus, in my opinion, could furnish no just or lawful ground for a discharge of the prisoner. I think there can be no doubt that a commitment may be valid without a formal complaint and warrant, where the party is before the magistrate and it is developed in the course of a judicial investigation that he has violated a criminal statute. — In Ex parte Thomas, 100 Ala. 101, 13 South. 517, on a petition for habeas corpus, it was said by this court, speaking through Haralson, J.: * * when a party is arrested on a criminal charge, without a warrant, and is taken béfore a magistrate, who investigates the charge, and it appears to him that the offense has been committed, and there is a probable cause to believe that the defendant is guilty, thereof, and he commits him to j~d in default of a
Section 4838, subd. 3, Code of 1896, cited as the law for the judgment of discharge of the prisoner here, reads as follows: “If it appears that the party is in custody, by virtue of process from any court legally constituted, or issued by any officer in the course of judicial' proceedings before him, authorized by law, he can only be discharged: * * * (3) where the process is void in consequence of some defect in the matter or substance required by law:” This section is found in chapter 157, title “Habeas Corpus.” The rule of interpretation of statutes is that they are to be construed in pari materia, and hence this statute is to be taken and construed in connection with those statutes above referred to, relating to preliminary proceedings. As we have seen, the mittimus is the process under which the prisoner was held, and it was not only not void, but was in all respects regular on its face; so it would seem that subdivision-3 of section 4838, above set out, is without application.
But, if it should be conceded that the mittimus was void for the reason, stated in the opinion of the majority, which, however, I think is unsound, I am still unable to
It is true that the prisoner is charged only with a misdemeanor, but the same result — his discharge here— would follow, if he had been charged with the most
