Ex parte Rice

• Decision Date: 14 June 1921
• Docket Number: 7 Div. 681
• Citation: 18 Ala.App. 186,89 So. 894
• Parties: Ex parte RICE.
• Court: Alabama Court of Appeals

89 So. 894

18 Ala.App. 186

Ex parte RICE.

7 Div. 681

Court of Appeals of Alabama

June 14, 1921

Appeal from Probate Court, Talladega County; E.A. Hammett, Judge.

Petition by Lorrie Rice for writ of habeas corpus. From a judgment denying the petition, he appeals. Reversed and remanded.

Hill Hill, Whiting & Thomas, of Montgomery, and Guy Rice, of Prattville, for appellant.

Harwell G. Davis, Atty. Gen., for appellee.

MERRITT J.

The petitioner filed his petition for habeas corpus before the judge of probate of Talladega county, alleging that he was being held and illegally restrained of his liberty in the county jail by one Cornett, sheriff of said county. The judgment recites that "the relief prayed for in the petition is denied, and that petitioner be remanded to the custody of William Armstrong, agent for the state of Mississippi. The bill of exceptions recites that the state offered in evidence the warrant of Hon. Thos. E. Kilby Governor of Alabama, and the sheriff's return on the writ of habeas corpus, and rested its case. Nowhere in the bill of exceptions does the Governor's warrant appear, nor the sheriff's return. The defendant offered testimony tending to show that he was not a fugitive from justice, and that he was not in the state of Mississippi at the time of the alleged forgery. The bill of exceptions also contains a recital that it contains all the evidence offered in the trial of the case.

Granting which we do not decide, that we may look to the record proper for the Governor's warrant and the sheriff's return as stated in the bill of exceptions to have been introduced by the state, yet these would not make out a prima facie case for the state. There appears nowhere in the record a requisition of the Governor of Mississippi on the Governor of Alabama charging the petitioner with being a fugitive from justice from the state of Mississippi; neither does there appear a copy of any affidavit or indictment against the petitioner, all of which was necessary to make out a prima facie case against petitioner. Until this was done there was no duty on petitioner to act. Ex parte Fitzgerald v. State, 90 So. 45; Godwin v. State, 16 Ala.App. 397, 78 So. 313; Ex parte Forbes, 17 Ala.App. 405, 85 So. 590; Barriere v. State, 142 Ala. 72, 39 So. 55; Singleton v. State, 144 Ala. 104, 42 So. 23.

The state having failed to make out a prima facie case against the petitioner, the judgment of the trial...