Wright v. StateWright v. State
- Reporters:
- , ,
- Before:
- Graffenried
Under the common law, as we received it from England, a person to whom a writ of habeas corpus wаs 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.
*141To add to the efficiency of the writ, the Legislature passеd 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 Cоde of 1907, shall be guilty of a misdemeanor.
The prosecution in the present case was commenсed by an affidavit made by W. C. Carroll, in which he states that “hе 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,’ judgе of probate of Pike County, Ala., and directed tо 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 Thоmas, and said Eva alias Evie Wright and Will Thomas neglectеd to obey and execute it according to its рrovisions.” The affidavit was demurred to upon only two grounds, viz.: (1) That it did not charge the commission of a criminal оffense, because it failed to show wherein the defendant neglected to obey said writ; and (2) becаuse it charged no offense known to the law.
Seсtion 7038 of the Code, under, the provisions of which the аbove 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 рrosecuted 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 sо doing; but, as above stated, under the express language of the statute, the state is not required to allеge, in its pleadings, that no such excuse existed.
*142Therе seems to be no conflict in the authorities upоn 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 оf the statute, I ‘Mayfield’s Dig. p. 431, § 187. It seems to us that •the affidavit in this сase 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.