Ex parte Dunklin
72 Ala. 241
Ala.
1882
Check Treatment
STONE, J.

The offense with which the prisoner was charged is a misdemeanor, and the statute confers on justices of the peace jurisdiction to try and punish persons guilty of the offense, unless, before entering on the trial, the 'accused demands a trial by jury.- — Code of 1876, §§ 4628, 4696. And on such trial the justice “must determine both the law and the facts, without the intervention of a jury, and award the pun*243ishment which the offense may demand.” — lb. § 4697. If convicted, the defendant has the right' of appeal. — Ih. § 4700. Now, -all these provisions relate to cases where the offender is brought before the justice, not for preliminary examination, but for final trial and judgment of guilty or not guilty. The justice, for such trials, is constituted a criminal court of oyer and terminer, with jurisdiction concurrent with that of the County Courts. — Ih. § 4628. If, when brought before the justice, the accused desires it, he may demand a trial by jury in the first instance; and if he does, the jurisdiction of the justice to determine the law and facts is at an end. — Ih. § 4695. The statute defines what is then the duty of the justice. He must require the accused “to enter into bond, with good sureties, conditioned for his appearance at the next term of the Circuit or City Court of the county, to answer the charge; and, failing to give such bond, must be committed to the county jail,” &c. This is a complete and entire system within itself, independent -of, and different from preliminary proceedings before a justice as a committing magistrate.—Sale v. The State, 68 Ala. 530. When a jury trial is claimed in such case, the justice hears no testimony, and pronounces no judgment on the probabilities of the defendant’s guilt. He performs his whole duty, when he filces the penalty, and approves the bond; or, failing to obtain it, commits the accused to prison for safe custody. This commitment is not as punishment, but to secure the appearance of the defendant to answer the charge to be preferred against him. It is not unlike the proceeding when one, brought up for pre-lhninary trial, obtains an adjournment of the hearing until a later day, on account of absent witnesses, or for some other cause; or, perchance, the continuance may be granted at the instance of the State. In either case, the accused, if he desire his liberty, can not complain of an order requiring him to give bond for his appearance, and, failing, that he remain in custody. And yet all this takes place before any testimony is heard. Code, § 4673. See, as to preliminary proceedings before a magistrate, Chapter 4, Title 3, Part 5, commencing with section 4647 of the Code.

There neither had been, nor could there have been, any preliminary examination in this case. The demand of a jury trial had precluded such examination, till the session of the Circuit or City Coxirt at which the accused was required to appear.

In support of the petition, we are referred to Ex parte Mahone, 30 Ala. 49; Ex parte Burnett, Ib. 461; and Ex parte Champion, 52 Ala. 311. In each of those cases, there had been a preliminary examination and commitment by a magistrate. Neither of those cases is an authority against the views expressed above. The case Ex parte State, ex rel. Brooks, *24451 Ala. 60, shows nothing bearing on the subject presented by this record.

The petitioner shows no right to the writ of habeas corpus, and the prayer of his petition must be refused.

Motion denied.