19 Ala. 561 | Ala. | 1851
This case has been elaborately and ably argued, and I proceed with all possible brevity to announce the-conclusion which the court has attained upon the questions presented.
And, first, as to the manner in which this court shall take-cognizance of the petitioners’ application, so as not to render its proceeding obnoxious to the provision of the constitution, which denies to it any other than appellate jurisdiction. The petitioners are in jail, under an arrest upon a capias, for murder. They petitioned the Hon. W. R. Smith to be allowed bail, which, upon trial of their alleged right on habeas corpus, he denied them. His refusal gives them the right to come into this court to ask the control or supervision of the action of the Circuit Court—(Ex parte Simonton, 9 Por. 383)—for without such action, either in refusing to entertain their application, or to grant, it, previously had before some court or judge competent to act in the premises, wo should, in such case, have nothing to revise therefore the granting of the writ would not bo appellate jurisdiction. But the writ, when granted, would only^bring the-bodies of the prisoners before this court, together with the cause of their detention, which is the capias, and not the proceedings-had before Judge Smith on their application for bail, and which we must revise, or our action in the premises is original. It i¿ the duty of this court, in order to enable it to carry out the powers with which the constitution invests it, of exercising “ a general superintendence of inferior jurisdictions,” to adopt such course of proceeding as will make its control complete.—Ex parte Chaney, 8 Ala. 424. It is important that the practice in such cases should be settled, and after the best deliberation which we have been enabled to bestow upon this branch of the case, we conceive the correct practice to be, for the prisoners, who conceive themselves aggrieved by the decision of the inferior jurisdiction, in the matter of their discharge, to petition this court for the writ of habeas corpus, and such .other remedial process as shall be necessary to render its control effectual, setting forth under oath such a state of case as shows that the court or the judge who made the decision erred to their prejudice, and that they are entitled by the case made before such inferior tribunal, to the relief which they seek. In such cases as the present, should this court deem the showing sufficient prima fade to en
It would, however,, be necessary, in cases where the prisoners desire to revise the action of the inferior court,, to have the facts upon which they invoke its action set out in writing and certified by the judge, so that the same may be returned'to this court as-the basis of its action. Such was the practice adopted by this court, in Field v. Milly Walker, 17 Ala. 80, where we were called upon to revise the decision of the Judge of the County Court, made upon a habeas corpus; and it appears to be the practice which obtains in the Court of Queen’s Bench in England, (see Queen v. Dunn, 12 Ad. & E. 599; S. C., 40 Eng. C. L. 124,) to issue the writ of habeas corpus and a certiorari.
It would be much more convenient, however,.both to the parties and to this court, for the Attorney General or those representing the State, and the counsel for the prisoners, to agree upon the case made before the inferior court, so that when the opinion of this court is pronounced on the application for the writ, if the accused, according to the principles settled by it, is entitled to be discharged, he may renew his application to the court below, saving thus the delay and expense consequent upon further, proceedings to be had in this court, and the necessity for bringing the prisoners in person before us. Such was the practice.indicated in Ex parte Stiff, 18 Ala. 464.
Objection in this case is made to our considering the transcript-of the record, and the facts stated by the circuit judge as a part of the case made below, for want of sufficient evidence of their identity with the cairse. The objection can avail nothing, upon the preliminary inquiry as to .whether we will award the writ; for the sworn petition sets forth the existence of such facts, and we must, for the purpose of this investigation, assume that they would be. returned by the inferior tribunal, in answer to the tiertiora/ri,’ as a portion of the case, and thus be sufficiently Identified.
¡ We now turn to the main inquiry, which is, whether from the petitioners’ own showing they are entitled to the relief which1
The facts, as presented to the circuit judge, and which appear from the transcript of the record above named, and the statement of them certified by the judge, may be thus briefly stated: The 'regular term of the Circuit Court for Greene county commenced on -Monday the 7th day of April, 1851, but the judge of the court did not arrive at the court until Wednesday following; on that day the court commenced its session, and on Saturday of the first week of the term, the grand jury returned into court an indictment, endorsed by the foreman, “ a true bill,” against the petitioners, for the murder of Elijah W. Harris, and it was ordered that a capias issue for their arrest; on Monday of the second week of the term, being the 14th day of April, 1851, a capias issued for their arrest, commanding that they should be brought before the court then sitting. This capias was returned into court before its final adjournment, en---dorsed as follows : “ Platt S. Croom and Pleasant May, arrested and under guard. — April 15th, 1851, (signed) O. M. Biuciiett, sheriff of Greene county, by Wm. M% Burchett, D. S.”
It appears by the testimony of the deputy sheriff, that he held the prisoners in custody under this capias, until their delivery to the jailor at Eutaw, on the 20th of April, and that the reason why he did not bring them from Greensborough to Eutaw sooner was, that he was- advised by several medical gentlemen that it’ would be unsafe to remove them earlier, on account of their wounds; but that the prisoners said nothing to him respecting their removal. Between the time of their arrest and commitment to the jail, and while they were in custody of the deputy sheriff at Greensborough, to-wit, on Friday of the second week of the term, being the 18th day of April, the circuit judge adjourned the court, leaving a considerable portion of the business, of the court undisposed of, but which was continued by a general order, which he caused to be entered on the record. On the day after the court adjourned, an alias capias issued against the prisoners, requiring the sheriff, &c., to take their bodies and have them before the Judge of the next Circuit Court to be holden for Greene county, on the second Monday after the fourth Monday in September then next. On this capias the sheriff of Greene, by the same deputy, returned that the prisoners were
The counsel for the prisoners insist, that the premature ad
, It is believed that the history of the legislation of the State, both • before and since the adoption of the constitution, and the numerous decisions of this court upon similar statutes, as well as the spirit.of other-portions of. the constitution, very satisfactorily shovi' that the- above clause in the Bill of Rights was not designed to deny to the Legislature the power to pass laws providing for bail' in capital cases, where the proof was evident or.the presumption great. At' the common law, all cases were bailable; but it was competent for the Legislature,,in the absence-of a constitutional inhibition,, to deprive the citizen of this right,, or so. to modify as to render it- valueless. The clause was designed not to place a perpetual restriction upon the common law right of the citizens of the State, in the matter of bail, but ou-tlie contrary to secure by the fundamental law of the State, and to. ’place this right,.in the given cases, beyond the power of either legislative or judicial interposition; creating, however, no restriction upon the Legislature as to the excepted cases, “where the proof is evident or the presumption great.” It was not the ‘•■ijiterition of the framers of the constitution to keep a party incarcerated in prison before conviction, as a punishment for the of-fence with which he may be charged.. Until conviction, the law.presumes him innocent, and merely provides for his being forthcoming for trial and to suffer its penalty,, should his guilt be ascertained according to- its prescribed forms. If,, without any fault attributable to the accused, the judge from term to term, in the exercise of his discretion over the matter of continuances, should delay the case by reason of some want of preparation on the part of the State, it would seem strange that the same instrument which declares he shall ho entitled to a speedy public trial, should provide that however long his trial maybe delayed, no law shall be passed allowing him to find sureties for his a-p-
Having ascertained that this statute is not unconstitutional, the next inquiry is, whether the facts and circumstances of the case before us entitle the prisoners to bail. In the solution of this inquiry, it will be proper to ascertain whether the prisoners were properly triable at the April Term of the Greene Circuit Court; for if they were not then “ properly triable,” the statute gives them no right to bail. What is meant by the “first term of the court at which he is properly triable ?” Does it mean the term as prescribed by law, or the actual time the court may sit 7 The last construction has been urged upon us by the counsel opposed to the prisoners, and we have been referred by
By the afct bf 1843, the Circuit Court for the county of Greenes
The law makes it the duty of the judge not to absent himself from the court before the end of the prescribed term, unless the business shall be sooner disposed of—(Clay’s Dig. 517, § 9)— and the general order of continuance which was made, is not such a disposition of the cases as the statute contemplates. Such continuance would follow as the result of a premature adjournment, whether the order was made or omitted. The adjournment was made, and the general continuance of all unfinished business, both civil and criminal, was ordered,, in the absence of the prisoners, who were in the officer’s custody, and they ought not to be prejudiced by the failure of the judge to continue the court until the business was disposed of, or until the end of the stated term, should the business require it.
But when the court adjourned the prisoners were at Greensboro’, some miles distant from the court-house, and the sheriff was advised that it was unsafe to remove them. This would most unquestionably have justified the court in adjourning upon disposing of the other business, without waiting to see whether they would sufficiently recover from their wounds to be brought up for arraignment and trial j and in justice to the presiding judge, it would be proper
Upon the facts we have stated, as shown by the petition and accompanying papers, we have arrived at the conclusion that the petitioners were entitled to bail, and that the writ of habeas corpus and certiorari to bring up to this court the prisoners, as also the proceedings had before Judge Smith, issue, unless the -counsel engaged are satisfied no new phase would be presented by the return, and are content to apply to the judge below for the relief which they seek, as hereby indicated.
We regret that in a case involving such important points of practice, as well as the construction of constitutional provisions, we have been deprived of the aid of the Chief Justice, by reason of his severe illness. The necessity, however, for an immediate opinion, forbade our delay.
July 22. — We have not entered into the discussion of the construction of the act of 1827, (Aik. Dig. 848, § 86,) so ably insisted on by the counsel opposed to the prisoners, for the rea»
Since the foregoing opinion was prepared,, the Chief Justice-lias so far recovered as to be able to examine it, and he-requests me to state that he fully concurs in it..
Upon further consultation by the whole court, it is deemed proper to observe, lest what we have said about the general order of continuance of the business in the Circuit Court of Greene might mislead the judge upon a future application for bail, that if it should appear upon subsequent investigation that such general order was made at the suggestion or,by the consent of the parties, whose cases were continued, or their counsel, the order would then operate as. a continuance entered in each case by-consent, and would be a completion of the business of the court,, justifying its adjournment. This, although clearly inferrable from what we have previously said, may prevent, any misconception of our view, as to what constitutes a premature, adjournment.