Ex parte Hamilton

• Decision Date: 07 November 1887
• Citation: 3 So. 68,65 Miss. 98
• Court: Mississippi Supreme Court
• Parties: Ex Parte JONES S. HAMILTON AND L. MIMS EUBANKS

3 So. 68

65 Miss. 98

Ex Parte JONES S. HAMILTON AND L. MIMS EUBANKS

Supreme Court of Mississippi

November 7, 1887

APPEAL from the decision of HON. T. E. COOPER, Chief Justice of the Supreme Court, on habeas corpus.

On the 20th of August, 1887, a petition was presented to the Hon. A G. Mayers, judge of the eighth judicial district, in the following language: "The petition of Jones S. Hamilton and L. Mims Eubanks respectfully states unto your Honor "That, at the June term, 1887, of the circuit court for the first district of Hinds County, an indictment was presented by the Grand Jury of said Hinds County to said court, charging your petitioners with the murder of R. D Gambrell, and upon said indictment a capias was issued to the sheriff of said county of Hinds, which was executed by the arrest of your petitioners, and under which said sheriff of Hinds County held your petitioners until delivered by him to the sheriff of Rankin County; that at said term of said Hinds County circuit court, upon application of the district attorney, a change of venue was ordered to said Rankin County, and thereupon a transcript of the record in said cause was filed with the circuit clerk of said Rankin County and, by order of the circuit court of Rankin County, made at the August term, 1887, your petitioners were delivered by the sheriff of said Hinds County to the sheriff of said Rankin County, and are now held in custody of the sheriff of said Rankin County under said indictment, without the permission to be enlarged upon bail. Your petitioners are illegally deprived of their liberty, without bail, in this: that the proof of the guilt of your petitioners is not evident, nor is the presumption great, nor is such proof evident or presumption great against either of them, and they are entitled to bail and to be enlarged upon the giving of the same. Your petitioners, therefore, pray your Honor that a writ of habeas corpus issue in their behalf, commanding them to be brought before your Honor, or some other judge, and upon a hearing that they be enlarged," etc. The petition was signed by the petitioners and verified by their affidavits.

Upon this petition a writ was issued commanding the sheriff of Rankin County to deliver the petitioners to the sheriff of Hinds County, and commanding the latter to have them before the Hon. T. E. Cooper, Chief Justice of the Supreme Court, on the 29th of August, 1887, "to do and receive what may then and there be considered concerning them." The two sheriffs made a joint return upon this writ, stating their performances of the order contained therein, and presenting a plea or answer setting forth "the causes of the commitment and detention of the prisoners."

The plea or answer referred to states that: "The said Hamilton and Eubanks are detained by virtue of an indictment presented by the Grand Jury of the First District of Hinds county to the Circuit Court of said district, the venue having been changed by the order of said circuit court; which said indictment is still in force pending a trial. Further before the finding of said indictment, the said relators presented their respective petitions for habeas corpus to Hon. E. G. Peyton, Chancellor of the Ninth District of this State, having jurisdiction thereof (the petition of said Eubanks dated and presented May 16, 1887, and that of said Hamilton dated and presented June 7, 1887), in which petitions relators set up and charged that they were unlawfully detained and deprived of their liberty by S. B. Thomas, sheriff of Hinds county, who detained them on a charge of the murder of R. D. Gambrell, and prayed the chancellor to inquire into the causes of their detention. Thereupon the said chancellor proceeded to hear the same, and after a hearing and argument pro and con, ordered and adjudged, on the 13th of June, 1887, that the applications be each denied, and the said prisoners remanded to the custody of said Thomas, sheriff, without bail; and from said order an appeal was prayed and granted, and amount of bond for appeal fixed. In obedience to said order and judgment said Thomas held said relators to await an indictment by the grand jury of said county and district. Thereafter, at the June, 1887, term of said court, said prisoners were jointly indicted for the said murder of R. D. Gambrell, and said prisoners are now held under said indictment and process thereon. The said judgments of the chancellor are unreversed and still in force. This application is in the same cause, and seeks to bring the same matters in question as were passed on by said chancellor. They file herewith copies of the said records in the habeas corpus proceedings, and of the said indictment, and ask that all of said records be made a part hereof, etc."

On the return-day of the writ, the 29th of August, 1887, Jones S. Hamilton presented to Chief Justice Cooper an amendment to his petition in the following language: "Your orator, Jones S. Hamilton, for an amendment to his petition for the writ of habeas corpus, respectfully shows that he is suffering greatly from a wound in his left arm, near the elbow, received in a conflict with R. D. Gambrell, which resulted in leaving in his elbow a leaden bullet, which rests against the elbow-joint and presses upon it; and it moves about the parts continually, causing great and constant pain, and rendering it impossible for him to straighten or rotate his arm without great pain, and threatening a permanent stiffening of his elbow-joint; and he is advised by his attending surgeons that it is important to extract it immediately; but they decline to perform the said operation while the relator is confined in jail; and relator says that such an operation in jail would be dangerous to his life; and this he sets up as an additional ground for his discharge on bail, and prays accordingly." This petition was verified by the affidavit of the relator.

On the same day the relators made a motion, to "strike out from the return to the writ so much of it as sets up the habeas corpus proceedings before Hon. E. G. Peyton, chancellor, previous to indictment found, and the judgment of said chancellor thereon, as surplusage and constituting no barrier to the application now pending." And on the 31st of August, 1887, this motion was overruled, and an exception taken by the relators.

On the day last mentioned, the district attorney representing the State made a motion "to strike out the amendment to the petition in this cause, which sets up the physical condition and suffering of relator Hamilton as a ground for bail; because the allegations of said amendment, if true, do not entitle relator to the relief sought to be obtained." On the 2d of September this motion was overruled.

On the 31st of August, 1887, Jones S. Hamilton, one of the relators filed two replications to the plea or answer of the sheriffs, stating as follows: "1. That on the 5th day of May, A. D. 1887, R. D. Gambrell was killed within the first district of Hinds county; that on the 8th day of May, A. D. 1887, J. B. Gambrell made an affidavit before W. H. Harris, Justice of the Peace, charging respondents, W. H. Figures, J. W. Albrecht, L. M. Eubanks and Bill Hardy, jointly, with the murder of the said R. D. Gambrell, and praying for a bench warrant against them; that the said warrant was thereupon issued by the said magistrate, and on the 9th day of May, 1887, all of said parties were arrested and imprisoned, except respondent, who was seriously wounded and taken into custody and guarded at his residence; that thereafter, to wit: on the said 9th of May, 1887, the said Eubanks, Hardy, Albrecht and Figures sued out writs of habeas corpus before the Hon. E. G. Peyton, chancellor, upon their respective petitions, alleging that the said justice of the peace had announced his purpose to delay the preliminary examination, to which they were entitled under the constitution and laws of this State, before their incarceration; that the said writs of habeas corpus were issued returnable on the 16th day of May, 1887; that on the said 16th day of May, it was in and by agreement of counsel conceded that the said magistrate had unreasonably postponed the preliminary examination, and it was agreed that the said chancellor might proceed to hear evidence on the said petitions, and might remand to custody, admit to bail or otherwise dispose of the cases as chancellor or conservator of the peace as the law and evidence might require; that upon said agreement and the return to the said writ of habeas corpus issued as aforesaid, and because of the said unreasonable delay the said chancellor proceeded with the hearing of the charge contained in the said affidavit of said Gambrell made as aforesaid before the said magistrate, and heard the evidence pro and con adduced; that, on the conclusion of the evidence, the said relators, Eubanks, Hardy, Albrecht and Figures, moved the court for leave to open and conclude the argument; but their motion was resisted, the said chancellor adjudged and decided that, in the case as presented, and the case of this respondent, the writ of habeas corpus issued had accomplished its purpose when the parties were brought into court, and the unreasonable delay was admitted, and that thereafter, under the agreement of counsel, he was proceeding in the cause as a conservator of the peace. And for this reason, that the State was entitled to the opening and conclusion of the argument; that the State took advantage of the said judgment and adjudication, and did, in fact, open and conclude the argument; that on the 7th day of June, 1887, this respondent, who was at the time and had been ever since the 5th day of May, 1887, confined to his house and wholly unable to leave it because of physical disability,...