Wright v. State

57 So. 1023 | Ala. Ct. App. | 1912

de GRAFFENRIED, J.

Under the common law, as we received it from England, a person to whom a writ of habeas corpus was directed, and who refused to obey the writ, was liable in damages to the party aggrieved, and was also guilty of a contempt of the court issuing the writ. Am. & Eng. Ency. Law, p. 129, note 6.

To add to the efficiency of the writ, the Legislature passed the act now forming section 7038 of the Code, which provides, among other things, that any person to whom a writ of habeas corpus is directed, and who refuses to receive the same, or neglects to obey and execute it according to the provisions of the chapter relating to the subject of habeas corpus, being chapter 227 of the Code of 1907, shall be guilty of a misdemeanor.

The prosecution in the present case was commenced by an affidavit made by W. C. Carroll, in which he states that “he has probable cause for believing and does believe-that, in Pike county, within twelve months before making this affidavit, a writ of habeas corpus issued by E. C. Edmonson,' judge of probate of Pike County, Ala., and directed to Eva alias Evie Wright and said Will Thomas, directing them to have the body of Henry and Robert Wright before said judge on a day named, which writ was served on Eva alias Evie Wright and Will Thomas, and said Eva alias Evie Wright and Will Thomas neglected to obey and execute it according to its provisions.” The affidavit was demurred to upon only two grounds, viz.: (1) That it did not charge the commission of a criminal offense, because it failed to show wherein the defendant neglected to obey said writ; and (2) because it charged no offense known to the law.

Section 7038 of the Code, under, the provisions of which the above affidavit was made, does not require that, in an affidavit or indictment charging a violation of its provisions, it shall be stated that the defendant, without sufficient excuse, neglected to obey and execute the writ. If a person is prosecuted criminally for a violation of the provisions of said section, he may, as a defense thereto, show by evidence that he had a sufficient excuse for so doing; but, as above stated, under the express language of the statute, the state is not required to allege, in its pleadings, that no such excuse existed.

There seems to be no conflict in the authorities upon the proposition that, when a statute creates a new offense, unknown to -the common law, and describes its constituents, it may be charged in the words of the statute, I 'Mayfield’s Dig. p. 431, § 187. It seems to us that •the affidavit in this case charges the defendant■ with a violation of all the material ingredients of the offense as defined in the statute creating it. We -are therefore of the opinion that the affidavit was not subject to the grounds of demurrer assigned to it.

Affirmed.