Chappell v. State

• Decision Date: 30 June 1908
• Citation: 156 Ala. 188,47 So. 329
• Parties: CHAPPELL v. STATE.
• Court: Alabama Supreme Court

47 So. 329

156 Ala. 188

CHAPPELL v. STATE.

Supreme Court of Alabama

June 30, 1908

Appeal from Circuit Court, Bullock County; A. A. Evans, Judge.

Application by George Chappell for his discharge on habeas corpus from imprisonment by virtue of a mittimus issued by a justice of the peace on a criminal charge. From an order denying the petition, George Chappell appeals. Reversed and rendered.

The petition was as follows:

"To the Honorable A. A. Evans, Judge of the Third Judicial Circuit: Your petitioner, George Chappell, respectfully represents unto your honor as follows: (1) That he is imprisoned in the county jail of Bullock county, Ala., by J. G. Carmichael, as sheriff of said county, under and by virtue of a mittimus issued out of the justice court of J K. Franklin, justice of the peace for said county, on a charge of delivering spirituous, vinous, malt, or intoxicating beverages or liquors, the sale of which is prohibited by law within Bullock county, Ala., the same being a prohibition district, a copy of which said mittimus is hereto attached, as well as a copy of the affidavit and warrant in said cause. (2) Your petitioner further represents unto your honor that his detention as aforesaid is unlawful, for the following reasons, to wit: First. Said affidavit fails to charge any offense known to the laws of Alabama. Second. The evidence in said cause is insufficient in law to warrant the detention of the petitioner. Third. Said affidavit purports to be made and said warrant issued under and by virtue of an act of the Legislature of Alabama approved July 9, 1907, entitled 'An act to prohibit the shipment, transportation, delivery or soliciting of orders for the sale of any spirituous, vinous, malt or intoxicating liquors, beverages or bitters into any prohibition district in the state of Alabama,' and said act of the Legislature is obnoxious to the provisions of section 45, article 4, of the Constitution of Alabama, in that said act or law contains two or more subjects, and also that the subjects of said act or law are not clearly expressed in its title. Fourth. The evidence in said cause does not make out a case of the violation of said act. Fifth. That the delivery of spirituous, vinous, and intoxicating liquors, etc., within any prohibition district in the state of Alabama, is not clearly expressed in the title of said act." Then follows the usual prayer.

The witnesses examined on behalf of the state on the preliminary trial are set out, and the affidavit, warrant, and mittimus are attached as exhibits. The usual mandate was issued to the sheriff to have the body of petitioner before the judge, with the cause of his detention, etc. The sheriff made the return as follows:

"To the Honorable A. A. Evans, Judge of the Third Judicial Circuit of Alabama: Now comes J. G. Carmichael, sheriff of Bullock county, Ala., and herewith produces the body of George Chappell, in response to the above writ of habeas corpus, and for answer thereto says that he has and holds the said George Chappell in the jail of Bullock county Ala., as sheriff thereof, under and by virtue of a mittimus issued by J. K. Franklin, justice of the peace, on the charge of delivering spirituous, vinous, malt, or intoxicating liquors, beverages, or bitters in Bullock county, Ala., a prohibition district in said state, a copy of which said mittimus is hereto attached and made a part hereof, and that said George Chappell has never tendered to said sheriff any bail bond, as required by said mittimus or by law, for his release; and said sheriff also herewith presents a copy of the affidavit and warrant in said cause, which is hereto attached and made a part hereof.

"This March 6, 1908.

"J. G. Carmichael,

"Sheriff of Bullock County, Ala."

The affidavit, warrant, and mittimus so attached are as follows:

"The State of Alabama, Bullock County. Before me, J. K. Franklin, a justice of the peace in and for said county, personally appeared A. L. Hixon, who, being duly sworn, deposes and says on oath that in said county he has cause to believe and does believe that, in his opinion, in said county, on or about the 11th day of February, 1908, George Chappell delivered spirituous, vinous, malt, or intoxicating liquors, the sale of which is prohibited by law in said county, against the peace and dignity of the state of Alabama.

"Sworn to and subscribed before me this 24th day of February, 1908.

"J. K. Franklin, Justice of the Peace.

"The State of Alabama, Bullock County. To Any Lawful Officer of Said County--Greeting: You are hereby commanded to arrest George Chappell and bring him before me, J. K. Franklin, to answer the state of Alabama on a charge of delivering spirituous, vinous, or malt liquors, intoxicating liquors, beverages, or bitters, in Bullock county, Alabama, a prohibition district in said state. And have you then and there this writ, with your indorsement thereon.

"Witness my hand this 24th day of February, 1908.

"J. K. Franklin, Justice of the Peace.

"The State of Alabama, Bullock County. To a Jailer of Bullock County: On examination of George Chappell, charged with the offense of delivering spirituous, vinous, malt, or intoxicating liquors, beverages, or bitters, the sale of which is prohibited by law in Bullock county, it appearing that such offense has been committed, and that there is sufficient cause to believe that George Chappell is guilty thereof, you are therefore commanded to receive him into your custody, and detain him until legally discharged.

"Dated this the 26th day of February, 1908.

"J. K. Franklin, J. P."

The following were the agreed facts: That said George Chappell was a citizen of Union Springs, Bullock county, Ala., and on the 10th day of February, 1908, he purposed going to Montgomery, Ala., and so informed one Jim Blackmon, who then and there gave to said George Chappell in Union Springs, Bullock county, Ala., $1, with the request that the said Chappell purchase for him in Montgomery two quarts of whisky and bring the same back to him at Union Springs. That on said day said Chappell went to Montgomery, and there purchased said whisky for said Jim Blackmon, and brought the same back to Union Springs, and on the 11th day of February, 1908, he delivered the same to Jim Blackmon in Union Springs.

Ernest L. Blue, for appellant.

Alexander M. Garber, Atty. Gen., for the State.

McCLELLAN, J.

In our opinion the prisoner should be discharged. The affidavit exhibited with the petition, to which, alone, on this record, the attaching of the jurisdiction of the justice of the peace can be referred, and out of a hearing of which the mittimus presented by the sheriff issued, omitting other unimportant features, avers that the affiant "has cause to believe and does believe that in his opinion" (italics supplied) the defendant unlawfully delivered liquor in a prohibitory district. In Butler's Case, 130 Ala. p. 129, 30 So. 338, treating a practically similar affidavit, it was said: "Such a complaint will not support the judgment of the justice, nor the statement filed by the solicitor in the county court, nor the judgment of the county court. * * * No valid judgment can be rendered on this complaint." Johnson's Case, 82 Ala. 29, 2 So. 466; Miles' Case, 94 Ala. 106, 11 So. 403. Butler was discharged here. If a valid judgment could not be rendered on a trial upon such a complaint, certainly a mittimus issued would be likewise a nullity. The reason underlying this ruling is that jurisdiction does not attach.

The prisoner must be discharged, as is expressly provided by the statute: "(3) Where the process is void in consequence of some defect in matter or substance required by law." Code 1896, § 4838; Code 1907, § 7033. Mere irregularity will not avail, since habeas corpus is not serviceable to review the action of a tribunal having acquired jurisdiction. Ex parte McGlawn, 75 Ala. 38.

TYSON, C.J., and SIMPSON, ANDERSON, and DENSON, JJ., concur.

DOWDELL J. (dissenting).

I cannot concur in the views of the majority of the court, as expressed in the opinion of Justice McCLELLAN in this case. In my opinion the majority have misconceived the law of the case, and the doctrine asserted, if adhered to, will lead to dangerous consequences in the administration of the criminal law. The petitioner for the writ of habeas corpus, appellant here, was tried before a committing magistrate, on preliminary investigation, for the violation of a criminal statute, and upon such trial and investigation was, in default of bail, committed to jail to await the action of the grand jury. While in the custody of the sheriff under a mittimus in all respects regular on its face, issued by the committing magistrate, the appellant made application by petition to...