Ex parte West

• Decision Date: 08 February 1894
• Citation: 100 Ala. 65,14 So. 901
• Parties: EX PARTE WEST.
• Court: Alabama Supreme Court

14 So. 901

100 Ala. 65

EX PARTE WEST.

Supreme Court of Alabama

February 8, 1894

Application by William West for habeas corpus. Writ denied.

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

COLEMAN J.

The petition and record show that petitioner was regularly tried before a committing officer for the offense of arson, and committed to jail in default of giving bail in the sum of $400 for his appearance to answer any indictment that might be preferred against him for such offense. From this imprisonment he sued out a writ of habeas corpus, returnable before the probate judge of Dale county. The sheriff made due return in accordance with the facts stated. All the witnesses who were examined before the committing magistrate were present and sworn as witnesses at the hearing of the habeas corpus proceedings. Only two were examined by the petitioner, and the testimony of one of them if believed, tended to prove an alibi. The petitioner then rested. The prosecutor demanded that the petitioner be required to examine the witnesses present in court who were examined by the committing magistrate. The petitioner declined to introduce further testimony, and the prosecution declined to introduce testimony. The petitioner then moved for his discharge, which motion was denied; hence the present application to this court.

In the case of Ex parte Champion, 52 Ala. 311, it is said "After a prior investigation by an officer authorized by law to make it, the prisoner ought not to be discharged without all the witnesses that had been previously examined against him, if still living and attainable, being produced and examined. In the absence of any material witness who previously testified against him, the question for consideration should relate only to the amount of bail, if the case be bailable." This case was cited, without an express affirmance or dissent, in the case of Ex parte Robinson, 86 Ala. 622, 5 So. 827. The Case of Champion supra, was one in which there was an application for a mandamus to compel the judge to hear the evidence, and the question was properly decided. All that was said as to how the investigation should be prosecuted, and the duty of the judge to re-examine all the witnesses who were examined on the preliminary trial, was dictum. The return of the sheriff showed prima facie that the prisoner was in legal custody. The burden, then, devolves on the petitioner to overcome the legal presumption arising from a commitment regular in form by a...