CHAPTER 157.

HABEAS CORPUS. 4812-4853.

4812 (4761) (4936) (4260) (709). Who entitled to writ; when the proper remedy.-Any person, who is imprisoned or restrained of his liberty in this state, on any criminal charge or accusation, or under any other pretense whatever (except persons committed or detained by virtue of process issued by a court of the United States, or by a judge thereof, in cases of which such courts have exclusive jurisdiction under the laws of the United States, or have acquired exclusive jurisdiction by the commencement of suits in such courts), may prosecute a writ of habeas corpus, according to the provisions of this chapter, to inquire into the cause of such imprisonment or restraint.

As to jurisdiction of state courts to discharge enrolled conscript from custody of Confederate States officer.-Ex parte Hill, 38 Ala. 458. Statutes on habeas corpus do not take away common-law right to the writ.-Kirby's case, 62 Ala. 51. Proper remedy when one sentenced to hard labor is confined in jail instead of being put to hard labor.-Kirby's case, 62 Ala. 51; Ex parte Pearson, 59 Ala. 654; Stewart's case, 98 Ala. 66; Crew's case, 78 Ala. 457; Goucher's case, 103 Ala. 305. Also, where justice of the peace imposes void sentence.-Ex parte McKivett, 55 Ala. 236. Also, where unauthorized sentence imposed for violating municipal ordinance.-Ex parte Moore, 62 Ala. 471. Also where sentence is in excess of jurisdiction; but not where the sentence is irregular merely, and not void.-Ex parte Brown, 63 Ala. 187; Ex parte Simmons, 62 Ala. 416; Ex parte State, 71 Ala. 371. Not appropriate remedy in imprisonment for contempt.-Ex parte Hardy, 68 Ala. 303. Scope of inquiry where party committed by chancellor for contempt.-Ib. Not the remedy to test putative father's right to custody of a bastard child.-Matthews v. Hobbs, 51 Ala. 210. When lies by a father for the custody of his child.-Ex parte Murphy, 75 Ala. 409. Although the writ is matter of right, it is not granted unless showing of party entitles him to relief.-Ex parte Campbell, 20 Ala. 89. The proper remedy to get case before supreme court when bail refused below.-Ex parte Croom, 19 Ala. 561; Jones's case, 94 Ala. 33; Richardson's case, 96 Ala. 110. See note to section 4355. Not remedy in case of unauthorized discharge of jury.-Ex parte Champion, 52 Ala. 311. Nor for disqualification of presiding judge.-Ex parte State, 76 Ala. 482. Nor for failure of jury to ascertain degree of murder. Ex parte Dover, 75 Ala. 40. When defendant not under indictment, may be discharged.-Ex parte Champion, 52 Ala. 311. Defendant committed in bastardy proceedings is entitled to writ.-Ex parte Charleston, 107 Ala. 688. Mandamus will lie to compel hearing of writ, though not to direct decision or discharge.-Jones's case, 94 Ala. 33. Whether writ will be awarded or not is a judicial question, but whether it will be heard or not is a ministerial one. Ib.; Charleston's case, 107 Ala. 688. Burden and sufficiency of proof on hearing of right to bail on habeas corpus.-Ex parte Hammock, 78 Ala. 414; Ex parte Rhear, 77 Ala. 92; West's case, 100 Ala. 65 (Ex parte Champion, 52 Ala. 311, criticised). Where held under void process.-Long's case, 87 Ala. 46; Reynold's case, 87 Ala. 138. When held under two processes, one valid and one void.-Gibson's case, 89 Ala. 174. Prisoner entitled to discharge unless offense committed and probability of his guilt shown.-Riley's case, 94 Ala. 82. Unreasonable delay in executing sentence of law entitles prisoner to discharge. Rand's case, 99 Ala. 302; Goucher's case, 103 Ala. 305. Party committed by justice of peace in cause in which he had final jurisdiction.-Prewitt's case, 99 Ala. 302. Prisoner is not entitled to discharge on account of neglect of clerk to forward transcript.-Cameron's case, 81 Ala. 87. Prisoner held on charge of fraudulently obtaining board at hotel not entitled to discharge.-King's case, 102 Ala. 183. Where party is bound over to grand jury and it finds no bill and does not continue case, prisoner should be discharged.-Stearnes's case, 104 Ala. 93. In extradition cases.-Ex parte Barker, 87 Ala. 4.

1892, p. 106.

4813. Person confined in jail under peace proceeding entitled Dec. 12. to writ.—Any person, confined in jail for failing to enter into an un

dertaking to keep the peace as required by a magistrate other than a judge of the supreme court or a chancellor, may prosecute a writ of habeas corpus as provided in this chapter; but such writ can be heard only by a judge of the circuit or city court, or a chancellor, who may discharge the applicant, or remand him to jail, or reduce the amount of the undertaking, as may seem right; and if the amount of the undertaking is reduced, the sheriff must discharge the applicant upon entering into the undertaking in the sum fixed by such judge or chancellor.

4814. Persons confined as insane.-Any person, confined as insane, may prosecute a writ of habeas corpus as provided in this chapter; and if the judge, or the jury, when the petitioner demands the issues arising to be tried by a jury, shall decide at the hearing that the person is insane, such decision does not bar a second application alleging that such person has been restored to sanity.

4815 (4762) (4937, 4938) (4261, 4262) (710, 711). Application made by petition on oath; what petition must state. The application for the writ must be made by petition, signed either by the party himself for whose benefit it is intended, or by some other person on his behalf; must be verified by the oath of the applicant, to the effect that the statements therein contained are true to the best of his knowledge, information and belief; and must state, in substance, the name of the person on whose behalf the application is made, that he is imprisoned or restrained of his liberty in the county, the place of such imprisonment, if known, the name of the officer or person by whom he is so imprisoned, and the cause or pretense of such imprisonment; and if the imprisonment is by virtue of any warrant, writ, or other process, a copy thereof must be annexed to the petition, or the petition must allege that a copy thereof has been demanded and refused, or must show some sufficient excuse for the failure to demand a copy.

Sufficiency of petition.-Ex parte Champion, 52 Ala. 311; Gibson's case, 44 Ala. 17. Not demurrable for failing to allege petitioner illegally restrained of his own liberty.-Ex parte Champion, 52 Ala. 311. Must be verified by affidavit. Stibbins v. Butler, Minor, 121; Gibson's case, 44 Ala. 17. Sufficient verification.-Gibson's case, supra; Ex parte Champion, supra. Unnecessary averments, though false, not subject of perjury.-Gibson's case, 44 Ala. 17. See also Charleston's case, 107 Ala. 689; Riley's case, 94 Ala. 82; West's case, 100 Ala. 65.

4816 (4763) (4939) (4263) (712). If name of party, etc., unknown, he may be described.-If the name of the person on whose behalf the application is made, or of the officer or person by whom he is imprisoned or detained, is uncertain or unknown, he may be described in any way that is sufficient to identify him.

4817 (4764) (4940) (4264) (713). To whom petition must be addressed. When the person is confined in a county jail, or any other place, on a charge of felony, or under a commitment or an indictment for felony, the petition must be addressed to the judge of the city court, or to the nearest circuit judge, or chancellor, or to the probate judge of the county where the person is confined; and when the person is confined in the penitentiary, or under a sentence, judg

ment, decree, or order of the supreme court, the chancery court, the circuit court, or the city court, other than an indictment for felony, the petition must be addressed to the judge of the city court, or to the nearest circuit judge or chancellor; in all other cases, it may be addressed to any one of them, or to the probate judge of the county; and when the person is confined in any other place than the county jail or the penitentiary, and on any other than a criminal charge, it may be addressed to any justice of the peace of the county, or to the probate judge thereof.

Section construed; when judge of probate has no jurisdiction; writ of prohibition to prevent him from acting.-Ex parte Ray, 45 Ala. 15. In his county, probate judge has same jurisdiction as circuit judge or chancellor.-Ex parte Keeling, 50 Ala. 474. Jurisdiction of circuit court; when action of circuit judge not restrained by prohibition from supreme court; presumption in favor of circuit judge's decision.-Ex parte State, 51 Ala. 60. When supreme court will issue writ.-Ex parte Simmonton, 9 Port. 383; Ex parte Chaney, 8 Ala. 424; Ex parte Burnett, 30 Ala. 461; Ex parte Hardy, 68 Ala. 303. Its jurisdiction is appellate only, and confined to evidence adduced before lower tribunal. Ex parte Brown, 63 Ala. 187. When proceeding in its nature appellate, and when original.-Kirby's case, 62 Ala. 51. Refusal of bail revisable on habeas corpus.-Ex parte Croom, 19 Ala. 561. Application to revise action of circuit court.-Ex parte Cleveland, 36 Ala. 306; Ex parte Hunter, 39 Ala. 560; Ex parte Jones, 94 Ala. 33.

4818 (4765) (4941) (4265) (714). To whom addressed in absence of nearest judge.-When the petition is required to be addressed to the nearest circuit judge or chancellor, and such judge or chancellor is absent, or has refused to grant the writ, or is incapable of acting, it may be addressed to any other circuit judge or chancellor; but, in such case, before the writ is granted, proof must be made, either by the oath of the applicant, or other sufficient evidence, of the particular facts which justify such address.

4819 (4766) (4942) (4266) (715). Writ granted without delay; before whom returnable.-The judge, chancellor, or justice, to whom the application is made, must grant the same without delay, unless it appears from the petition itself, or from the documents thereunto annexed, that the person imprisoned or restrained is not, under the provisions of this chapter, entitled to the benefit of the writ. When the person is confined in the penitentiary, the writ must be made returnable before the circuit court of Elmore county, or the circuit or city court of the county in which the convict is confined; but if the writ is granted more than ten days before the time fixed by law for the holding of the circuit court of Elmore county, or the circuit or city court of the county in which the convict is confined, it must be made returnable before the nearest circuit or city judge or chancellor; when granted by a justice of the peace, it must be made returnable before the judge of probate of the county, or the judge of the city court, or the nearest circuit judge or chancellor; and in all other cases, it must be made returnable before the officer by whom it is granted.

4820 (4767) (4943) (4267) (716). Form of writ.—The writ may be, in substance, as follows:

"The State of Alabama, To the sheriff of

county (or other county. S person by whom the party is imprisoned or restrained): You are hereby commanded to have the body of

A. B., alleged to be detained by you, by whatsoever name the said A. B. is called or charged, with the cause of such detention, before C. D., judge of the circuit court (or other officer, as required by the preceding section), on, at — (specifying the time and place, or immediately after the receipt of this writ, as the case may be), to do and receive what shall then and there be considered concerning the said A. B. Dated this —, 18—.

day of

-

(Signed by the officer, with his official title.)" 4821 (4768) (4944) (4268) (717). Not disobeyed for want of form or mistake.-The writ must not be disobeyed on account of any want of form, or any misdescription of the person to whom it is addressed; and it must be presumed to have been addressed to the person on whom it is served, notwithstanding any mistake in the name or address.

4822 (4769) (4945) (4269) (718). Notice to adverse party in interest. If it appears from the petition, or from the documents thereunto annexed, that the party is imprisoned or detained by virtue of any process under which any other person has an interest in continuing his imprisonment or restraint, the officer issuing the writ must indorse thereon an order requiring the applicant, or some one else for him, to give notice to such person, or to his attorney, of the issue of the writ, and of the time and place at which it is returnable, in order that he may, if he thinks proper, appear and object to the discharge of the party who is imprisoned; and if such notice is not given, when the party who is entitled to it is within fifty miles of the place of examination, the party who is imprisoned must not be discharged.

4823 (4770) (4946) (4270) (719). Notice in criminal cases; waiving examination; presumption.—If it appears from the petition, or from the documents thereunto annexed, that the party is imprisoned or detained on any criminal charge or accusation, the officer issuing the writ must indorse thereon an order requiring the applicant, or some one else for him, to give notice to the solicitor of the circuit, or to the prosecutor, or principal agent in procuring the arrest, of the issue of the writ, and of the time and place at which it is returnable; and if such notice is not given, when the solicitor or other person entitled to it is within fifty miles of the place of examination, the party who is imprisoned must not be discharged. But if the party is charged with an offense which is bailable, and he waives an examination into the facts, the judge may fix the amount of bail, without notice to the solicitor or prosecutor; and, in so doing, must act on the presumption that the offense is of the highest grade.

4824 (4771) (4947) (4271) (720). Precept to sheriff or constable. At the time of issuing the writ, or at any time afterwards before the hearing, the officer issuing the writ must, on a proper showing, issue a precept, directed to any sheriff or constable of the state, commanding him to have the body of the person who is imprisoned or re

strained before the officer before whom the writ is returnable, at the time and place at which it is returnable; which precept must be executed by any sheriff or constable into whose hands it may come, according to its mandate.

4825 (4772) (4948) (4272) (721). Subpoenas for witnesses.-Subpoenas for witnesses must be issued at any time before the hearing, on the application of either party, by the clerk of the circuit or city court of the county to which the writ is returnable, or by the probate judge by whom the writ was issued, or by any justice of the peace of the county in which the witness resides; which subpoenas. must be directed to the sheriff, or to any constable of the county in which the witness resides, and must be executed and returned as in other cases.

4826 (4773) (4949) (4278) (722). Service of writ; by whom, and how made. The writ must be served by the sheriff, deputy-sheriff, or some constable of the county in which it is issued, or in which the person on whose behalf it is sued out is imprisoned or detained, by delivering a copy to the person to whom it is directed, and showing the original, if demanded; and if such person cannot be found, or conceals himself, or refuses admittance to the officer, it may be served by leaving a copy at the place where the party is confined, with any person of full age, who, for the time being, has charge of the party, or by posting it in a conspicuous place on the outside of the house or building in which the party is confined.

4827 (4774) (4950) (4274) (723). Return; when made.-The person to whom the writ is directed, after due service thereof, must make his return, if practicable, on the day therein specified; and if no day is therein specified, and the place to which the return is to be made is not more than thirty miles from the place where the party is imprisoned or detained, the return must be made within two days after service; if more than thirty, and less than one hundred miles, within five days, and if over one hundred miles, within eight days after service.

4828 (4775) (4951) (4275) (724). Form and contents of return. The return must be signed by the person making it, and be verified by his oath, unless he is a sworn public officer, and makes the return in his official capacity; and it must state, plainly and unequivocally, whether or not he has the party in his custody or power, or under his restraint; if so, by what authority, and the cause thereof, setting out the same fully, together with a copy of the writ, warrant, or other written authority, if any; and if he has had the party in his custody or power, or under his restraint, at any time before or after the date of the writ, but has transferred such custody or restraint to another, to whom, at what time, for what cause, and by what authority, such transfer was made.

4829 (4776) (4952) (4276) (725). Body also produced, with warrant, etc.-At the time of making the return, he must also produce the person on whose behalf the writ was sued out, according to the command of the writ, and the original warrant, writ or other