41 So. 990 | Ala. | 1906
Section 4817 of the code of 1896 provides that a petition for habeas corpus when the person making it is confined in the penitentiary, must be addressed to the judge of the city court, or to the’ nearest circuit judge or chancellor. The petition in this case shows that the petitioner was confined in the peniten
There is no merit in the motion to dismiss the appeal. The writ was made returnable before the chancellor at Anniston; if it can be said of the cause that it.was pending in any court, it was the chancery court of Calhoun county, and the register in chancery of that'county was pro hac vice, the clerk for the purpose of making, certifying, and transmitting the transcript of the record. The record is here certified by the register and also by the chancellor. — Code 1896, § 4314. The case presented by the record is rather a novel one and one not entirely free from difficulty. The defendant was indicted at the spring-term, 1896, of the circuit court held for Cleburne county, for the, crime of murder. He was twice convicted in that court, but the judgment of conviction was reversed each time and the cause remanded. After the second reversal the cause was transferred to the county court of Cleburne county and was there tried in January, 1898; the defendant was convicted the third time and sentenced to imprisonment in the penitentiary for thirty years. On appeal the judgment of the county court was affirmed by this court. — Fuller’s Case, 117 Ala. 36, 23 South. 688.
The county court of Cleburne was created by an act of the general assembly approved February 16, 1897. — Acts 1896-97, p. 802. The first section of the act confers on the court the same jurisdiction and powers of the circuit-court.' It is provided, in the thirty-first section (page 814), of the act that at any time after the spring- term,. 1897,' of the circuit court of Cleburne county, when any person is confined in the jail of said county on a charge of felony in the circuit court, and is not entitled to bail,
The petitioner was confined in the jail of Cleburne county and was unable to give bail. The cause against him was docketed by the clerk of the circuit court, who was ex-officio clerk of the county court, on the county court docket after the spring term, 1897, of the circuit court had been held, and not within 30 days before the succeeding term of the circuit court. Under the statute the duty of the clerk to so docket the case is made mandatory. The case was tried in the county court without any question being raised by the petitioner (defendant there) as to the jurisdiction of the county court to hear and determine the cause.
It is now insisted by the petitioner (appellee) that the part of the thirty-first section of the county court act heretofore referred to, is in conflict with section 5, of article 6, of the constitution of 1875 (section 143 Const. 1901), and, therefore, that its enactment was not within legislative competency . The case of Adcock v. State, 142 Ala. 30, 37 South. 919, is relied upon as supporting the contention. The act construed in the case of Ad-cock, is one entitled: “An act to further regulate the practice and procedure of the circuit court of Olay county, Alabama,”.and was approved December 13, 1898.— Acts 1898-99, p. 19G. The first section provides: “That from and after the 1st day of March, 1899, no grand jury shall be drawn, impaneled and summoned for the circuit court of Clay county, except upon the order of the circuit judge of said court, such order must be forwarded to the clerk thereof, and filed by him at least twenty days before the first day of the term of said court, for which said grand jury shall be called. All indictments returned by such grand jury shall be immediately transferred by the clerk of said court to the county court of Olay county, for trial, and it shall take no order of the court to carry this provision into effect.” A grand jury was organized
We have seen that the county court is a court having jurisdiction of the crime — the subject-matter — and by the course of conduct on the part of the defendant, and of the representative of the state, “the existence of ali facts essential to the jurisdiction of the county court was affirmed, and upon the affirmation, the court could not but act, judicially.” — Ex parte Rice, 102 Ala. 671, 15 South. 450; Railway Co. v. Ramsey, 22 Wall. (U. S.) 322, 22 L. Ed. 823. As was said by Brickell, C. J., speaking for the court in Ex parte Rice, supra: “Consent cannot confer jurisdiction, it is true, but it is jurisdiction of the subject-matter which is derived from the law, which parties may not by consent confer. , When jurisdiction of the subject-matter is conferred bylaw, jurisdiction of the person may be acquired by the acts of consent of parties.” On the authority of that case we hold, that by the course of conduct which the record shows the petitioner pursued in the county court, that court acquired jurisdiction of his person and
We are at the conclusion that the chancellor should have denied the prayer of the petition, and a judgment will be here rendered setting aside the order made by the chancellor, and dismissing the petition.
Reversed and rendered.