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written authority under which he was detained; but if, from sickness or infirmity, the party cannot be produced without danger, that fact must be stated in the return, and verified by oath, and, if required, established by other sufficient evidence.

4830 (4777) (4953) (4277) (726). Proceedings when body not produced on account of sickness, etc.-When the party on whose behalf the writ is sued out, on account of sickness or infirmity, is not produced, the court, chancellor, or judge before whom the writ is returnable, if satisfied of such sickness or infirmity, may proceed to decide on the return as if the party had been produced; or may proceed to the place where he is imprisoned or detained, and there make the examination; or may adjourn the examination to another time. 4831 (4778) (4954) (4278) (727). Proceedings when body produced under precept.-If the party is brought before the court, judge, or chancellor, by virtue of a precept issued under the provisions of section 4824 (4771), the case must be heard and determined as if he had been produced in return to the writ.

4832 (4779) (4955) (4279) (728). Denial of return; examination, adjournment, bail, etc.-The party on whose behalf the writ is sued out may deny any of the facts stated in the return, and allege any other facts which may be material in the case; and the court, chancellor, or judge may examine, in a summary way, into the cause of the imprisonment or detention, and hear the evidence adduced; may adjourn the examination from time to time, as the circumstances of the case may require, and in the meantime remand the party, or commit him to the custody of the sheriff of the county, or place him under such other custody as his age or other circumstances may require, or, if the character of the charge authorize it, take bail from him, in a sufficient amount, for his appearance from day to day until judgment is given.

4833 (4780) (4956) (4280) (729). Forfeiture of undertaking of bail pending examination.-If the party fails to appear, as required by his undertaking, an entry of forfeiture must be indorsed thereon, signed by the judge or chancellor, and returned to the circuit or city court of the county in which the examination is had; and the same proceedings must be thereon had in such court, as if the undertaking had been taken in such court, the indorsement of forfeiture being presumptive evidence of that fact.

4834 (4781) (4957) (4281) (780). When party discharged; when remanded. If no legal cause for the imprisonment or restraint of the party is shown, he must be discharged; but if it appears that he is held or detained in custody by virtue of process issued by a court or judge of the United States, in a case of which such court or judge has exclusive jurisdiction, or by virtue of any legal engagement or enlistment in the army or navy of the United States, or, being subject to the rules and articles of war, is confined by any one legally acting by authority thereof, or is in custody for any public offense committed in any other state or territory, for which, by the constitution and laws of the United States, he should be delivered up to the authority

of such state or territory, or that he is otherwise legally detained, he must be remanded.

When entitled to be discharged.-Riley's case, 94 Ala. 82.

4835 (4782) (4958) (4282) (781). When bailed, and how.-If it appears that he is charged with a public offense which is bailable, he must be admitted to bail, on offering sufficient bail; and if sufficient bail is not offered, the amount of bail required must be indorsed on the warrant, and the court to which he is required to appear; and he may be afterwards discharged by the sheriff of the county on giving sufficient bail in the amount so required.

Holcombe's case, 99 Ala. 185.

4836 (4783) (4960) (4284) (733). Undertaking of bail returned to court; forfeiture thereof.--All undertakings of bail taken by any judge, chancellor, or sheriff, under the provisions of the preceding section, must be transmitted by him to the clerk of the court before which the party is bound to appear, by the first day of the next succeeding term; and may be forfeited, and the same proceedings thereon had, as against other bail in criminal cases.

4837 (4784) (4961) (4285) (734). Judgment, etc., or commitment for contempt, not inquired into.-No court, chancellor, or judge, on the return of a writ of habeas corpus, has authority to inquire into the regularity or justice of any order, judgment, decree, or process of any court legally constituted, or into the justice or propriety of any commitment for contempt made by a court, officer, or body, according to law, and charged in such commitment.

Merits of the case against a party committed by a magistrate may be gone into anew on hearing of application for habeas corpus; may demand hearing on all the evidence.-Ex parte Mahone, 30 Ala. 49; Ex parte Champion, 52 Ala. 311. Mandamus will lie to compel hearing on the evidence.-Ex parte Mahone, supra; Ex parte Shaundies, 66 Ala. 134. See ex parte Champion, supra. Return presumed to be true, when no evidence produced on either side, and averments of petition not thereby admitted.-Ex parte Hunter, 39 Ala. 560. Not to be discharged unless witnesses previously examined against him are produced, if attainable; may be bailed.-Ex parte Champion, 52 Ala. 311. Illegality, not error or irregularity, can be inquired into.-Kirby's case, 62 Ala. 51. See West's case, 100 Ala. 65 (criticising ex parte Champion, supra). Recalcitrant witness held for contempt not entitled.-Ex parte Pearce, 111 Ala. 99.

4838 (4785) (4962) (4286) (735). If under legal process, when discharged. If it appears that the party is in custody, by virtue of process from any court legally constituted, or issued by any officer in the course of judicial proceedings before him, authorized by law, he can only be discharged

1. Where the jurisdiction of such court has been exceeded, either as to matter, place, sum, or person.

2. Where, though the original imprisonment was lawful, the party has become entitled to his discharge by reason of some subsequent act, omission, or event.

3. Where the process is void in consequence of some defect in matter or substance required by law.

4. Where the process, though in proper form, was issued in a case, or under circumstances, not allowed by law

5. Where the process is not authorized by any judgment, order, or decree, or by any provision of the law.

6. Where the person who has the custody of him, under any order or process, is not the person authorized by law to detain him.

If in confinement under final judgment of court of competent jurisdiction, not discharged on account of mere errors or irregularities, however gross.-Ex parte Sam, 51 Ala. 34. If warrant and commitment good, irregularity of complaint no ground for habeas corpus.—Ex parte McGlawn, 75 Ala. 38. Power of court to inquire into validity of order, when detention is claimed under civil process.-Morrow v. Bird, 6 Ala. 834. Party in custody under defective indictment will not, for such defect, be discharged on habeas corpus.-Ex parte Whitaker, 43 Ala. 323. Party held under valid process should not be discharged "by reason of some subsequent act, omission or event," unless the facts have the legal force and effect of "former acquittal.”—Ex parte State, 76 Ala. 482. Prisoner may go behind return and show no offense was committed.-Riley's case, 94 Ala. 82; West's case, 100 Ala. 65. Burden, order and sufficiency of proof on hearings.-West's case, 100 Ala. 65; Robinson's case, 86 Ala. 622; McGlawn's case, 75 Ala. 38; Tate's case, 76 Ala. 482. When only proof of amount of bail is admissible.-Robinson's case, 86 Ala. 622; West's case, 100 Ala. 65. If it appears that no offense has been committed, or that there is no probable cause of prisoner's guilt, he should be discharged.-Charleston's case, 107 Ala. 688; Riley's case, 94 Ala. 82. When mandamus will lie to compel hearing or issuing of writ.-Jones's case, 94 Ala. 34; Charleston's case, 107 Ala. 688. Loose or informal judgment of conviction by justice no ground for habeas corpus.-Gayle's case, 108 Ala. 514. When not entitled to writ on account of delay in committal to prison.-Espalla's case, 109 Ala. 92. When entitled to discharge.-Ex parte Goucher, 103 Ala. 305; Ex parte Stewart, 98 Ala. 66; Ex parte King, 82 Ala. 59; Ex parte Crews, 78 Ala. 457; Ex parte Kirby, 62 Ala. 51; Ex parte Pearson, 59 Ala. 654.

4839 (4786) (4963) (4287) (736). When remanded or committed for public offense.-If it appears that the party has been -legally committed for any public offense, or that he is guilty of such an offense, although his commitment was irregular, he may be remanded to the custody or restraint from which he was taken, if the person under whose custody or restraint he was is legally entitled thereto; and if not so entitled, he must be committed to the custody of the proper officer or person.

4840 (4787) (4964) (4288) (737). After discharge not again arrested. When a person has once been discharged on habeas corpus, he cannot be again imprisoned, restrained or kept in custody, for the same cause, unless he is indicted therefor, or, after a discharge for defect of proof, is again arrested on sufficient proof, and committed by legal process.

Does not apply where first commitment was under void warrant.-Cameron's case, 100 Ala. 395.

4841 (4788) (4965) (4289) (738). Penalty for refusal to discharge, or for rearrest.-Any officer, or other person, who has the custody of a party produced on habeas corpus, and who detains him after an order of the court, chancellor, or judge for his discharge or enlargement, or afterwards arrests him without a legal and proper cause, warrant or other process, must, on conviction thereof, be fined not less than fifty, nor more than five hundred dollars; and is also responsible in a civil action for any damages the party may have sustained.

4842 (4789) (4966) (4290) (739). Penalty for refusal to give copy of warrant, etc.-Any officer, who refuses or neglects to deliver a true copy of the order, writ, warrant, or process, by virtue of

which he detains any prisoner, either to the prisoner himself, or to any other person who applies for the same on his behalf, for six hours after demand made, forfeits to the prisoner two hundred dollars, and is also guilty of a misdemeanor, on conviction of which he must be fined not less than fifty, nor more than five hundred dollars; but no officer is required to deliver more than two copies of such order, writ, warrant, or process.

4843 (4790) (4967) (4291) (740). Penalty for refusal to obey writ.-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 this chapter (unless sufficient excuse is shown for such refusal or neglect), is responsible in damages to the party aggrieved, and is guilty of a contempt, and also of a misdemeanor; and, on conviction thereof, must be fined not less than fifty dollars.

4844 (4791) (4968) (4292) (741). Attachment against person refusing.—It is the duty of the officer before whom such writ is returnable, in case of such refusal or neglect on the part of the person to whom it is directed, to proceed forthwith against him, by process of attachment, as for contempt, to compel obedience to the writ, and to punish him for such contempt; and when such attachment is issued against the sheriff, or his deputy, it may be directed to the coroner, or to any constable, and may be executed by such coroner or constable.

4845 (4792) (4969) (4293) (742). Penalty for eluding writ. Any person, who has in his custody, or under his control, a person who is entitled to a writ of habeas corpus, and, either before or after the issue of such writ, with intent to elude the service or effect thereof, transfers such person to the custody of another, or places him under the power or control of another, or conceals him, or changes his place of confinement, forfeits to the party aggrieved the sum of five hundred dollars, and is also guilty of a misdemeanor; and, on conviction thereof, must be fined not less than fifty dollars, and may also be imprisoned in the county jail not more than twelve months.

4846 (4793) (4970) (4294) (743). Penalty on defaulting witness; proceedings therefor.—If any witness, duly subpoenaed under the provisions of this chapter, fails to attend as required, the judge or chancellor before whom the writ is returnable must indorse such failure on the back of the subpoena, and deliver it to the clerk of the circuit court of the county in which the examination is had; and the same proceedings must be thereon had as against defaulting witnesses in that court, the indorsement being presumptive evidence of such default.

4847 (4794) (4971) (4295) (744). Attendance of witnesses; how proved and taxed.-Witnesses may prove their attendance before the judge or chancellor, as in other cases, and have the same taxed in the bill of costs, on the subsequent conviction of the party, where he is detained on a criminal charge.

As amended Feb. 19,

4848 (4795) (4972) (4296) (745). Costs discretionary; how taxed and collected.-In other cases, the court, judge, or chancellor may impose the costs, or any portion thereof, on either party; and when the writ is returnable before a chancellor, or before a judge of the circuit or city court, the costs must be taxed by the clerk of such circuit or city court, and collected by execution.

4849 (4796) (4973) (4297) (746). Fees of officers; how taxed 1995, p.699. and collected.--The officer serving the writ is entitled to one dollar for such service, and to five cents for each mile in going and returning, to be proved by his own oath, before the judge of probate or clerk; and for issuing and serving subpoenas, the officers are entitled to the same fees as in other cases; for holding an examination, the judge of probate is entitled to three dollars; which fees must be taxed in the bill of costs in the case provided for by section 4847 (4794), and in other cases collected by execution issued by the judge of probate.

4850 (4797) (4974) (4298) (747). Costs before probate judge; how taxed, etc.-When the writ is returnable before the judge of probate, he must tax the costs, and may collect the same by execution, except in the case provided for in section 4847 (4794).

4851 (4798) (4975) (4299) (748). Execution for costs, returnable when.--An execution for costs, issued under the last three sections, may be made returnable at any day, not less than one month, nor more than three months from the date of its issue, except upon the conviction of a public offense.

4852 (4799) (4976) (4300) (749). Guards summoned when necessary. When the person, on whose behalf the writ is sued out, is charged with a public offense, the officer or person having charge of him may summon a sufficient guard to aid in conveying him before the court, judge, or chancellor before whom the writ is returnable, and conveying him back again, if he is not discharged.

4853 (4800) (4977) (4301) (750). Compensation of guards; penalty. In the case provided for in the preceding section, the officer and guards are entitled to the same compensation as for removing any prisoner on a change of venue, to be paid in the same manner; and such guards are under the control of the officer summoning them; and any guard, who refuses to obey or violates the lawful instructions of such officer, is guilty of a misdemeanor.

CHAPTER 158.

HOMICIDE. 4854-4863.

4854 (3725) (4295) (3653) (111). Murder; different degrees of. Every homicide, perpetrated by poison, lying in wait, or any other kind of willful, deliberate, malicious and premeditated killing; or

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