Ex parte Graves

| Ala. | Dec 15, 1878

MANNING, J.

The argument for petitioners presents their case with skillful ingenuity. But we think mandamus is not the proper remedy, if they were entitled to any.

“The judges of the circuit courts within their respective circuits, and the judges of inferior courts within their respective jurisdictions,” are “conservators of the peace.” Const, art. 4, § 16, Code of 1876, p. 140. And here, as in England, judges who are entrusted with the conservation of the peace are authorized to issue warrants of arrest, or to commit persons already before them, when the occasion for the commitment judicially appears. — 1 Hale’s P. C. 578; 1 Bish. Crina. Pro. (Ed. of 1872) § 229. Nor is it necessary that there should be any such legislation as that suggested by counsel, to confer on the courts having jurisdiction of crimes, in which those judges preside, the authority they have as-judges. Said Marshall, C. J., in the trial of Aaron Burr: “It is believed to be a correct position that the power to-commit for offenses of which it has cognizance, is exercised by every court of criminal jurisdiction, and that courts as well as individual magistrates are conservators of the peace. Were it otherwise, the consequence would only be, that it would become the duty of the judge to descend from the bench, and in his character as an individual magistrate, to do all that the court is asked to do.” — Note to § 229, supra. But, in committing an accused person to jail, or in requiring bail for his appearance to answer to a charge of crime, the judge or the court doing so, acts judicially; and the correctness or not of the order or judgment rendered, can not be inquired into by the writ of mandamus. That is granted only when there is a clear legal right and no other adequate remedy. Ordinarily, in cases like the present, the investigation is had upon habeas corpus. The writ of mandamus is never issued to correct errors in, or to reverse the judicial action of a court. By that process “ inferior courts or magistrates, when they fail or refuse to do so, will be compelled to entertain and exercise jurisdiction. They will not be controlled in the manner of its exercise, nor directed as to what judgment they shall render.” — Davidson v. Washburn, 56 Ala. 597. The case of petitioners is, therefore, not a proper one for the writ of mandamus.

But the argument in their behalf is entitled to a further answer.

We can not assent to the proposition, that whenever a demurrer is sustained to an indictment, or it is quashed or otherwise vacated, the person against whom it was preferred is, in every such case, to be discharged. The presentment of a grand jury is always sufficient authority for the issue of a capias or warrant of arrest for the person accused, and for detaining him in custody, if not enlarged upon bail, to answer for the offense charged. The law, upon such a finding of the grand jury, makes it the duty of a court to hold him for trial upon the indictment. Now, if on account of an error in the name of a person mentioned in it — say of the owner of the railroad car alleged in this instance to have been burglariously entered, or for some other mere informality or defect not reaching the merits, the indictment be quashed or a nol. pros, entered, — must therefore, the court or judge, though knowing that nothing has been disclosed to show that the presentment of the grand jury is unfounded, yet discharge the persons accused and let them go free ? This would be giving too much weight to that circumstance. When the indictment is quashed for a reason not touching the question of their guilt or innocence, they can not be considered as vindicated; nor is the effect of the presentment of the grand jury so destroyed, that, looking both to the safety of the public and the rights of individuals, it would be unjust to hold persons so accused of crime, bound to appear to answer •.another indictment therefor, free from the defects of the first. 'This is implied, indeed, by the provision of the statute, that The court may in such a case “ order another indictment to •be preferred for the offense charged or intended to be •charged,” either “ at the same or a subsequent term.” The •authority to refer the matter again to a grand jury, imports that although the instrument quashed be vacated as an indictment, it may be good as an affidavit or report of the grand jury that the party accused had committed the offense with which he is charged. By declaring the power in a court to require inquisition by another grand jury, the statute recognizes it as possessing the corresponding authority of holding the supposed culprit to answer to their presentment.

If this were not so — if, as counsel contend, the accused were entitled to be set at liberty upon the quashing of the indictment for informality — this right would exist as well in a case transferred for trial by a change of venue to a different county from that in which the offense was committed and the witnesses lived, as in the latter; so that by having an indictment vacated at a time when witnesses could not be immediately produced, counsel might get the worst criminals turned loose to escape unpunished.

Gooden v. The State, 35 Ala. 430" court="Ala." date_filed="1860-01-15" href="https://app.midpage.ai/document/gooden-v-state-6506649?utm_source=webapp" opinion_id="6506649">35 Ala. 430, arose out of such a case. One Foley was tried and found guilty, in Talladega county, ■of a crime committed in Randolph. But judgment was arrested for defects in the indictment, and a nol. pros, entered. Whereupon the court bound the accused by recognizance with sureties for his appearance to answer another indictment, to be preferred against him for the same offense, at the next term of the Circuit Court of Randolph county. Foley having failed thus to appear, his sureties, Gooden and others against whom a judgment of forfeiture was taken, denied the power of the court to exact the recognizance. It is true there was a verdict against the accused of a petit jury, as well as the presentment of a grand jury. But the former was annulled as completely as the latter ’was. This court upon an appeal to it said: “ Independent of statute, the circuit courts possess the undoubted power, where the judgment in a criminal cause is arrested and a nolle prosequi is entered by the State, to bind the defendant over to appear at the circuit court of the proper county to answer a new indictment for the same offense,” — page 433. We think these petitioners were not detained in a case not provided for law.

The writ of mandamus is refused.