Smotherman v. State, 140 Ala. 168

Smotherman v. State

140 Ala. 168 | Ala. | 1903

McCLELLAN, C. J.

The granting of writs of error is authorized and regulated by sections 4327-4332 of the Code. The writ can only be awarded on a judgment rendered by a court in a criminal case and for some error of law apparent on the record of the primary court. — Code, § 4327.

The order made by the judge of the criminal court of Jefferson county denying petitioner’s prayer for discharge on habeas corpus is not a judgment of the city court in a criminal case within the terms of this statute, nor are the proceedings in such case shown of record in that court.

The petition now before us, therefore, presents no case for a writ of error.

The petitioner, however, also appealed from the order of the city judge refusing to discharge him. This is the method for bringing that order under review. — Code, § 4314. And upon the appeal we will inquire into the legality of his detention.

\The warrant upon which appellant was arrested was issued by a justice of the peace of Shelby county. It was' addressed: “To any lawful officer of said [Shelby] county.” The arrest was made in Jefferson county by a policeman of the city of Birmingham, and the prisoner was delivered to.the warden of the city jail, by whom his body was produced before the judge of the criminal court at the hearing. This warrant of the Shelby justice was not endorsed by any magistrate of Jefferson county as required by section 5219 of the Code to give it efficacy in that county. In the absence of such endorsement, it may be conceded that as a mandate of arrest — as in and *171of itself conferring any authority to arrest the person named therein — this warrant was wholly inefficacious— “wholly worthless” — in the county of Jefferson.—Code, § 5219; Ledbetter v. State, 23 Tex. App. 247, 257; Peter v. State, 23 Tex. App. 684, 687; People v. Shaver, 4 Park. Crim. 45; State v. Dooley, 121 Mo. 591, 603. But it by no means follows that the police officer was without authority to arrest Smotherman. To the contrary, this warrant itself, though without force as a Avarrant in Jefferson county, showed the existence of a fact upon which the officer Avas authorized by the statute to make the arrest without a warrant, namely, the fact that a charge had been made upon reasonable cause that Smotherman had committed a felony.—Code, § 5211; Floyd v. State, 82 Ala. 16, 23. This warrant of arrest and the complaint before the Shelby county justice of the peace upon which the warrant Avas issued were before the judge of the city court on the hearing of the petition for habeas corpus, and that pending the occurrence or opportunity of petitioner’s arrest. Assuming that it was the arresting officer’s duty, the arrest having been made as without warrant, to promptly carry his prisoner before a magistrate, Ave also assume that this duty would have been performed but for the issuance of the writ of habeas corpus, and that pending the occurrence of opportunity to discharge this duty it was necessary for the prisoner to be confined in the city jail, it not appearing what, if any appreciable, time elapsed betAveen the arrest and the service of the writ. On this state of affairs, the petitioner was not entitled to show on the hearing below that in point of fact he Avas not guilty of the offense charged against him. His proposed evidence to the effect that he Avas not bodily present in Shelby county when the offense was committed, moreover, Avould not have necessarily shoAvn him innocent.-State ex rel v. Tally, 102 Ala. 25, 63-5.

The prisoner was not entitled, we therefore conclude, to his discharge, and the order of the judge of the city court denying his petition to that end was free from error.

*172The petition for writ of error is denied; and, on the appeal, the order of the judge of the city court is affirmed.