Ex parte State

• Decision Date: 27 May 1897
• Citation: 22 So. 115,115 Ala. 123
• Parties: EX PARTE STATE.
• Court: Alabama Supreme Court

22 So. 115

115 Ala. 123

EX PARTE STATE.

Supreme Court of Alabama

May 27, 1897

Application of the state of Alabama for a writ of mandamus. Writ awarded.

This was a petition addressed to the supreme court of Alabama asking for a writ of mandamus to be issued to the judge of the city court of Montgomery, compelling him to reinstate the cause of The State of Alabama v. Noah Stephenson upon the docket of the said city court. The petition alleged the following facts: That at the October term, 1885, of said court, one Noah Stephenson was indicted for the offense of an assault with intent to murder. That upon the presentation of said indictment in the said city court a capias was issued by the clerk of the court, which was in all respects in conformity with the law, and which was returned "Not found." That thereafter, on February 24, 1896, an alias capias was issued by the clerk of said court, upon which Noah Stephenson was arrested by the sheriff and committed to jail. That, immediately upon the return of the capias showing the arrest of Stephenson, the clerk of the court put the case of The State of Alabama v. Noah Stephenson on the trial docket of said court, the charge being the identical assault with intent to murder charged in the indictment as formerly preferred. That at the then sitting term of the court, the cause of The State of Alabama v. Noah Stephenson being called, the state asked for a continuance on account of the absence of witnesses, whereupon the defendant moved the court to dismiss and strike said cause from the docket because of a discontinuance. In support of this motion the defendant offered in evidence the docket of the justice of the peace who held the preliminary examination of the defendant, which docket showed that the said Stephenson had been tried by the justice of the peace on the charge of "an assault, with attempt to murder," upon the same person as charged in the indictment, and that, upon the trial by the justice Stephenson had been bound over to answer any indictment that might be found against him by the grand jury sitting at the October term, 1885, of the city court of Montgomery, he executing bond. Upon the hearing of the motion the court granted the same, and ordered the same stricken from the docket. In the answer of said judge, in response to the rule nisi, the allegations of the petition were admitted as true except so far as shown by the following averments therein...