Ex parte Sam, 51 Ala. 34

Ex parte Sam

51 Ala. 34 | Ala. | 1874

BRICKELL, J.

The constitution provides, “ that, in cases of petit larceny, assault, assault and battery, affray, unlawful assemblies, vagrancy, and other misdemeanors, the general assembly may, by law, dispense with a grand jury, and authorize such prosecutions and proceedings before justices of the peace, or such inferior courts as may be by law established.” Const. Art II. § 10. This provision of the present constitution was extracted from the constitution of 1865. R. C. p. 33, § 9.

The penal code of 1866, now forming part of the Revised Code, defined grand larceny as the stealing of specific chattels, or the stealing in or from particular places, or the stealing of any personal property other than that enumerated, exceeding in value one hundred dollars. Petit larceny is defined as the stealing of personal property not enumerated, or under other than the specified circumstances. R. C. §§ 3706-7-8. The punishment prescribed for petit larceny is imprisonment in the county jail, or hard labor for the county, for not more than twelve months; to which a fine, not exceeding five hundred *37dollars, may be added. Justices of the peace were invested with jurisdiction, concurrently with tbe county courts, of the offence of petit larceny, when the value of the thing stolen did not exceed ten dollars. R. C. § 3932. After the adoption of the present constitution, the general assembly declared “ all laws and parts of laws of the Revised Code of Alabama, except such as conflict with the constitution and laws of the United States, or the constitution of this State, be, and the same are hereby, in full force and effect,” &c. Pamph. Acts, 1868, p. 7.

On the hearing of the application for habeas corpus, it appeared the petitioner was detained at hard labor for the county, under a judgment rendered by a justice of the peace, on a prosecution against the petitioner for stealing personal property not exceeding in value ten dollars. The term of labor to which petitioner was condemned was twelve months, which had not expired. The proceedings before the justice of the peace are “ lamentably loose,” and it is painful to see such a careless disregard of the simple forms the law prescribes. But these are mere irregularities, not the subject of revision or correction by a writ of habeas corpus. Illegality, as distinguished from mere irregularity, must have intervened, to have entitled the petitioner to a discharge on habeas corpus. The principle that error or irregularity in a record, or in process, when drawn in question collaterally, does not invalidate, applies to this writ. Hurd on Habeas Corpus, § 334. The justice of the peace, in the judgment rendered, and in the process issued for its execution, did not exceed or usurp jurisdiction. As this is not predicable, the defects in the mode of proceeding, however gross, are mere irregularities. Consequently, the judge of the city court committed no error in remanding the petitioner and dismissing the petition. Motion refused.