Ex parte State ex rel. Attorney General

43 So. 490 | Ala. | 1907

TYSON, G. J.

The petition in this case is for a writ of prohibition, and was exhibited to Hon. B. I). Weakley, the then Chief Justice of this court, in vacation, who.issued a rule nisi returnable to this term of this court. In obedience to the rule issued, the judge to whom it was directed answered, admitting all the material averments of the petition, but denied that his acts as judge constituted a usurpation of jurisdiction or power,, or that the power conferred upon him by law was abused, or that, his jurisdiction had been exceeded in any particular. This matter of controversy arises over the right, or rather the jurisdiction, of the respondent, as judge of the criminal court of Jefferson county, to hear and determine a petition for a writ of habeas corpus in behalf of one Williams, who was confined in the jail of that county for safe-keeping, to abide the execution of a judgment of conviction of murder in the first degree, in which he was sentenced to death, rendered by the circuit court in and for the county of Cullman, under an. order of that court, upon the alleged "ground that Williams, since his conviction, had become insane, and.was insane at the time of the filing of the petition. The fore going facts are shown by the petition for the writ of habeas corpus. The motion to dismiss that petition for Avant of jurisdiction wa»s denied.

It is undoubtedly true that prohibition is an extraordinary legal remedy, and can only be resorted to in cases of usurpation of jurisdiction or power by an inferior court, or when, in the exercise of jurisdiction in handling matters clearly within its cognizance, the inferior court transgresses the bounds prescribed to it by the law.—2 Brick. Dig. p. 389, § 1 et seq. It is also true; that this remedy cannot be resorted to when an appeal will lie for the correction of errors committed upon the hearing of a cause. But, if the want of jurisdiction is disclosed on the face of the petition, then the writ of prohibition will be awarded, notwithstanding the respondent may have jurisdiction to issue writs of habeas corpus in proper cases.—Ex parte Walker, 25 Ala. 81; Ex parte Smith, 23 Ala. 94. In other words, when it clearly appears that the inferior court has no jurisdiction of the subject-matter or of parties to the legal controversy, a writ of prohibition is the remedy.—16 Ency. Pl. & Pr. p. 1110, and note 2. And obviously, when this is the case, -if the proceeding should be permitted to go to judgment such judgment would not support an appeal, because it would be coram non juclice.—Ex parte Lyon, 60 Ala. 650; Pettus v. McKinney, 56 Ala. 41; David’s Adm’r v. David, Ib. 49.

On the facts averred in the petition, did the respondent have jurisdiction to entertain it? Section 4959 of the Criminal Code of 3896 expressly confers upon the court in which Williams was convicted authority to commit him for safe-keeping to the jail of Jefferson county. Bv that order the court did not surrender its custody of him necessary to the execution of the sentence of death pronounced against him. Nor did his appeal to this court from the judgment of conviction, and an affirmance of that judgment, impair the right of the circuit court to his custody for the purpose of enforcing its judgment and sentence. — Section 5439 of the Criminal Code of 1896. That court having custody of him for the purpose of enforcing its judgment, could the respondent legally entertain the petition for habeas corpus, and thereby deprive1 the circuit court of its custody of him, to the end, it may be, of defeating its right to enforce; the judgment? We think not. There is clearly no statute which authoi'izes such a proceeding. In Ex parte Johnson, 167 U. S. 120, 17 Sup. Ct. 735, 42 L. Ed. 103, oti petition for habeas corpus after convictioir and sentence of death by the District Court of the United States, the court said: “We know of no reason why the rule so frequently applied in cases of conflicting jurisdiction between federal and state courts, should not determine this question. Ever since the case of Ableman v. Booth, 21 How. 506, 16 L. Ed. 169, it has been the. settled doctrine of this coui't that a court having possession of a person or property cannot be deprived of the right to deal with such person or property until its jurisdiction is exhausted, and that no other court has the right to interfere with such custody or possession.” In Ex parte Roberson, 123 Ala. 103, 26 South. 645, 82 Am. St. Rep. 107, Roberson renewed to this court his application for writ of habeas corpus after conviction, alleging his unlawful confinement in the county jail by virtue of a void judgment. This court, after ascertaining that the judgment of comiction was valid, said: “The, defendant being legally held in custody under proceedings in a court having jurisdiction of his person and of the offense with, which he was charged and has been convicted, the circuit judge properly refused to issue the wait, and here also it will be denied.”’ See, also, Ex parte Chandler, 114 Ala. 8, 22 South. 285; State v. Humphrey, 125 Ala. 110, 27 South. 969; Hall v. State, 130 Ala. 139, 30 South. 502. This piinciple, it seems to us, is decisive of the questkm that the respondent had no jurisdiction to hear and (letei'mine the petition foi* writ of habeas corpus; for it will certainly not be disputed that the custody or possession of Williams by the court that tried him was essential to the enforcement of the judgment of conviction. Any other rule would produce a conflict of jurisdiction over the right to the ciistody of the person of the condemned psisoner, and lead to inextricable confusion, resulting in a defeat of the due administration of the law.

But it is said that, if the right to prosecute the petition for the writ is denied, Williams will be deprived of all recourse to have his insanity atI non inquired into; that if insane he should not he executed AAdiile in that condition. Every court has the inherent poAver to control the execution of its orders or processes, to the end of preventing an abuse of them.—Hoffman v. Sewell, 148 Ala. 378, 42 South. 556; Larkin v. Mason, 71 Ala. 227. We do not doubt the poAver of the judge of the circuit court upon proper application to order a stay of the execution of Williams for the purpose of instituting an inquiry as to his sanity, and, if found to be insane, then to stay his execution until a recovery.—4 Blackstone, Com. 24, 24; Nobles v. Georgia, 168 U. S. 398, 406, 18 Sup. Ct. 87, 42 L. Ed. 515. But it may be said, that this court, upon the appeal from the judgment of conviction, in affirming that judgment, fixed the day for Williams' execution, and therefore1 the circuit court was A\dthout authority to stay Ms execution on that day. If this he conceded, this court has the poAver to stay the execution until the judge of the circuit court can make the inquiry into his sanity.

Jjet the writ of prohibition he awarded.

Doavdedl, Anderson, and McChelhax, J.J., concur.