Ex parte Hunter, 39 Ala. 560

39 Ala. 560 | Ala. | 1865

STONE, J.

We think the point which is sought to be presented in this case, is not before us in such form that we can consider it. If the 'petitioner was, and is, a resident citizen of this State, the record does not inform us that such is the fact, or that any attempt was made in the court below to prove that fact. The petition for habeas corpus, it is true, avers such to be the case; but the petition is a mere office paper, — the authority to the court or judge for issuing the writ. Neither the writ of habeas corpus, nor the return to it, makes any allusion to the subject of the petitioner’s residence. If there be any rule, (upon which we express no opinion,) that, in construing the return, we can look to and consider the writ of habeas corpus in connection therewith, that rule does not authorize us to take into the account the petition for habeas corpus, and to consider its uncontro-verted averments as admitted by the pleadings. There is, then, nothing in this record, which shows that the petitioner was, or was not, a resident of the Confederate States; and we can not presume such to have been the case, in order to place the circuit judge in error. The rule is, to indulge every reasonable intendment in favor of the correctness of that court’s proceedings, when they are brought to our notice in the form presented by this record.

Nor are we informed upon what ground the petitioner asked for a continuance. It is not even averred that he sought to prove he was a resident of Alabama, or of the Confederate States. So, even if that attempt would aid him, he has not shown that he denied or expected to prove that he was not a resident of Alabama. But a refusal to grant a continuance is not revisable in Alabama.—Pl. & M. Bank v. Willis, 5 Ala. 770.

We must, then, look alone to the return to the habeas corpus, in ascertaining the status of the petitioner, and the nature of the charge under which he is held in custody. That return, although controvertible under our statute, (Code, § 3732,) is presumed to be true until its truth is disproved, or its effect avoided. — See Hurd on Habeas Corpus, 263, el seq. Regarding the return to the habeas corpus as true, we find nothing in the proceedings before us to authorize us to grant an appellate habeas corpus.

We express no opinion on the question which the present application seeks to raise. It was before the supreme court of New York in the case of Smith v. Shaw, 12 Johns. 256; but we prefer not to commit ourselves either for or against the correctness of that decision.

Habeas corpus refused.