Ex parte Davis

• Decision Date: 26 May 1892
• Citation: 95 Ala. 9,11 So. 308
• Parties: EX PARTE DAVIS.
• Court: Alabama Supreme Court

11 So. 308

95 Ala. 9

EX PARTE DAVIS.

Supreme Court of Alabama

May 26, 1892

Appeal from probate court, Pike county; W. J. HILLIARD, Judge.

Hearing on petition of Jack Davis for writ of habeas corpus. From a judgment denying the writ the petitioner appeals. Reversed.

D A. Baker, for petitioner.

Wm. L. Martin, Atty. Gen., for respondent.

THORINGTON J.

The petitioner was tried before a justice of the peace in Pike county on a charge of violating a written contract alleged to have been entered into by him pursuant to the provisions of section 3832 of the Criminal Code, and on preliminary investigation before a justice of the peace was committed to jail to answer the charge in the circuit court of said county. An application for a writ of habeas corpus was made by the petitioner to the judge of probate of said county, based on the ground that the contract which the petitioner was charged with having violated was not made and entered into in open court, on a confession of judgment by petitioner and his surety; this contention being predicated on the following facts: A warrant was duly issued, on affidavit, against petitioner on a charge of obtaining money on false pretenses, said warrant being so issued by a justice residing in beat or precinct 14 of said county. Afterwards on December 28, 1891, the justice who issued the warrant being on his way to Troy, which is in beat 1 in said county, met an officer with petitioner, whom he had arrested under the warrant, and was carrying to the office of the justice in beat 14 for trial. Petitioner thereupon informed the justice that he desired to plead guilty to the charge in the warrant, whereupon all the parties repaired to the sheriff's office in the courthouse at Troy, where the petitioner put in a plea of guilty to the charge, of which plea and his judgment thereon the justice made a memorandum, and transferred the same to his docket on his return to his office in beat 14. The bill of exceptions states that at the time of receiving the plea and noting the judgment the justice did not open his court, nor did he have his docket with him, nor did he come to Troy on that day for the purpose of holding court. That at the time of pleading guilty as aforesaid petitioner signed a contract with one Bush to work for him as set forth in the bill of exceptions, which contract was approved by the justice, and purports to have been recorded in the office of the judge of probate. A copy of the judgment entered on petitioner's plea of guilty is shown by the bill of exceptions as it appears on the docket of the justice, and which recites that "the defendant appeared in open court, and pleaded guilty to the charge," etc., and also recites that the fine and costs were settled in full by said Bush. There is nothing on the face of the judgment indicating that the proceedings were had, or the judgment rendered, elsewhere than at the office of the justice, or that the fine and costs were paid before the contract was entered into. The contract entered into by petitioner with said Bush is also set out in the bill of exceptions, and recites on its face that petitioner was, on the day of its date, convicted of a misdemeanor "in the justice court of Pike county, Ala.," and that said Bush had become the surety of petitioner for the fine and costs in the case. The contract binds petitioner to work for said Bush a sufficient length of time to pay the fine and costs, and also any advances Bush should make to petitioner during the term of service, at the rate petitioner was allowed to pay the fine and costs. The contract also includes $10 over and above the fine and costs, which was paid by Bush to one Rhodes at petitioner's request, on a debt the latter owed Rhodes. The contract is signed by petitioner and said Bush, and recites that it was signed in open court. It is approved in writing by the justice, and was recorded in the office of the probate judge.

In order to entitle the petitioner to a discharge on application for a writ of habeas corpus something more than mere irregularity and error in the proceedings or process by which he is detained in custody must be shown. If there is jurisdiction in the court to try the offense imputed to the prisoner, no error or irregularity which may have occurred or been committed in exercising such jurisdiction can be inquired into on habeas corpus. An appeal is the appropriate remedy for the correction of such errors and irregularities. Ex parte McKivett, 55 Ala. 236; Ex parte State, (In re Long,) 87 Ala. 46, 6 South. Rep. 328. "Illegality, not irregularity, must infect the proceedings to authorize a discharge on habeas corpus. " Ex parte Brown, 63 Ala. 187. The constitution of this state requires the election of two justices of the peace in each precinct of the counties, by the qualified electors thereof, and defines their jurisdiction in civil cases, but not in criminal cases. Article 6, § 26. And the statute, (Code, § 341,) following the constitution, requires the election of two justices of the peace "for each election precinct." Section 4233 of the Criminal Code declares that justices of the peace have, in their respective counties, jurisdiction of the offenses named in said section; and chapter 3 of said Code provides the jurisdiction and proceedings before justices and other officers on preliminary investigations of public offenses. In Horton v. Elliott, 90 Ala. 480, 8 South. Rep. 103, it was decided by this court that a justice of the peace, elected in one precinct, has no jurisdiction to hear and determine a civil case in an adjoining precinct, except in cases of emergency, as provided in the statutes. But it was said in that case: "In what we have said no reference is had to the jurisdiction of a justice when sitting as an examining court on the preliminary investigation of a criminal charge." In Boynton v. State, 77 Ala. 29, in a case growing out of a preliminary investigation of a public offense, in which one justice of the peace had associated two others with him on the hearing, it is said: "Two of these officers *** were unquestionably competent to sit in the cause, either one of them alone constituting a legal examining tribunal for the purpose of such a trial. It was no objection to them that they were holding their court out of their beats, or precincts, because justices of the peace in this state have a criminal jurisdiction in such matters coextensive with their counties;" and sections 4628, 4632, and 4663 of the Code of 1876 are cited to support the proposition. These sections are identical with sections 4233, 3716, and 4274 of the present Code, in so far as they affect the territorial jurisdiction of a justice of the peace, and sustain the proposition announced in the above-cited case only in a limited sense.

There are several sections of the Code which prescribe specific cases in which justices of the peace may hear and determine preliminary investigations of crime within their counties outside their own precincts,-such, for example, as sections 4274, 4279, 4280, and 4282; but the very fact that these statutes permit it in the cases therein designated is sufficient to show that such authority would not exist but for such statutes, and excludes the idea that the jurisdiction exists in other cases not provided for by the statutes. The principle as announced in the words above quoted from Boynton v. State is stated too broadly, and should be confined in its application to cases of like character. The two justices who sat in that case on the preliminary examination outside of their own precincts were associated by another justice of the county with himself on such hearing, and it was therefore a case clearly provided for by the statute, and a case in which said justices could have exercised jurisdiction in any precinct in the county under like circumstances; that is, on being associated with himself by a justice of equal grade in such other precinct. Crim. Code, § 4279. And as a proposition applicable generally to criminal cases triable before a justice of the peace it could not be sustained. The words in section 4233 of the Criminal Code, "in their respective counties," (which section specifies the criminal cases of which justices of the peace have jurisdiction,) must be considered in the light of the constitutional and statutory provision requiring the election of justices of the peace for each precinct in the counties, and with the body of laws in the Code relating to the jurisdiction of such officers, and also with reference to the laws protecting freeholders from suits before justices of the peace in other precincts than that in which they reside, except in the cases otherwise expressly provided for by statute. So looking at the matter, we think a justice of the peace has jurisdiction in criminal cases mentioned in section 4233, "in their respective counties," in the sense that process may go out from his court to any precinct in the county...