Ex parte State

Citation43 So. 490,150 Ala. 489
PartiesEX PARTE STATE EX REL. ATTORNEY GENERAL.
Decision Date02 April 1907
CourtSupreme Court of Alabama

Petition by the state, on the relation of the Attorney General, for a writ of prohibition to the judge of the Jefferson county court. Writ awarded.

John Williams was convicted in the circuit court of Cullman county of murder, and sentenced to be hanged. He appealed to this court, and pending said appeal sentence was suspended, and he was confined in the jail of Jefferson county for safe-keeping. This court affirmed the judgment of the lower court and fixed a day for the execution of the sentence. While incarcerated in the Jefferson jail, and just previous to the day fixed by this court for his execution, Frank Williams sued out a writ of habeas corpus for John Williams alleging his conviction in the Cullman court and his insanity since his conviction, and that he was illegally restrained of his liberty by the jailer of Jefferson county, and that he should be in the custody of the State Asylum for the Insane. The petition was addressed to Judge Weaver, of the Jefferson county criminal court. He issued the writ returnable before him of a certain day, and when that day arrived application for a writ of prohibition was granted by this court returnable at a later day, requiring Judge Weaver not to hear and determine the application for habeas corpus until this court could inquire into his right and authority to do so. He made return to the writ, and answered.

Massey Wilson, Atty. Gen., Geo. H. Parker. and John A. Lusk, for petitioner.

Erle Pettus, Zell Gaston, and F. E. St. John, for respondent.

TYSON C.J.

The petition in this cause is for a writ of prohibition, and was exhibited to Hon. S.D. Weakley, the then Chief Justice of this court, in vacation, who issued a rule nisi returnable to this term of this court. In obedience to the rule issued, the judge to whom it was directed answered, admitting all the material averments of the petition, but denied that his acts as judge constituted a usurpation of jurisdiction or power or that the power conferred upon him by law was abused, or that his jurisdiction had been exceeded in any particular. This matter of controversy arises over the right, or rather the jurisdiction, of the respondent, as judge of the criminal court of Jefferson county, to hear and determine a petition for a writ of habeas corpus in behalf of one Williams, who was confined in the jail of that county for safe-keeping, to abide the execution of a judgment of conviction of murder in the first degree, in which he was sentenced to death rendered by the circuit court in and for the county of Cullman, under an order of that court, upon the alleged ground that Williams, since his conviction, had become insane, and was insane at the time of the filing of the petition. The foregoing facts are shown by the petition for the writ of habeas corpus. The motion to dismiss that petition for want of jurisdiction was denied.

It is undoubtedly true that prohibition is an extraordinary legal remedy, and can only be resorted to in cases of usurpations of jurisdiction or power by an inferior court, or when, in the exercise of jurisdiction in handling matters clearly within its cognizance, the inferior court transgresses the bounds prescribed to it by the law. 2 Brick. Dig. p. 389, § 1 et seq. It is also true that this remedy cannot be resorted to when an appeal will lie for the correction of errors committed upon the hearing of a cause. But, if the want of jurisdiction is disclosed on the face of the petition, then the writ of prohibition will be awarded, notwithstanding the respondent may have jurisdiction to issue writs of habeas corpus in proper cases. Ex parte Hill, 38 Ala. 429; Ex parte Walker, 25 Ala. 81; Ex parte Smith, 23 Ala. 94. In other words, when it clearly appears that the inferior court has no jurisdiction of the subject-matter or of parties to the legal controversy, a writ of prohibition is the remedy. 16 Ency. Pl. & Pr. p. 1110, and note 2. And obviously, when this is the case, if the proceeding should be permitted to go to judgment such judgment would not support an appeal, because it would be coram non judice. Ex parte Lyon, 60 Ala. 650; Pettus v. McKinney, 56 Ala. 41; David's Adm'r v. David, Ib. 49.

On the facts averred in the petition, did the respondent have jurisdiction to entertain it? Section 4959 of the Criminal Code of 1896 expressly confers upon the court in which Williams was convicted authority to commit him for safe-keeping to the jail of Jefferson county. By that order the court did not surrender its custody of him necessary to the execution of the sentence of death pronounced against him. Nor did his...

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