Palmer v. State
| Decision Date | 22 December 1910 |
| Citation | 54 So. 271,170 Ala. 102 |
| Parties | PALMER v. STATE. |
| Court | Alabama Supreme Court |
Appeal from Order of Chancellor of Northeastern Division; W. H Simpson, Chancellor.
Petition by Fayette Palmer for writ of habeas corpus. From an order denying the writ, he appeals. Affirmed.
See also, 51 So. 358.
The allegation of the petition is that petitioner was convicted in the circuit court of Marion county on the 24th day of August, 1910, and sentenced to the penitentiary for the term of five years; that he made known his desire to appeal to the Supreme Court, and the presiding judge of the circuit court ordered that he be admitted to bail in the sum of $1,000, to be approved by the clerk; and that he made said appeal bond and was discharged from custody. Several reasons have been alleged why the judgment of conviction was void, and on the void judgment application is based to be relieved of the bail bond; it being alleged that he is in the custody of the clerk of the circuit court by virtue of said bail bond. There was order and decree denying the petition.
E. B. & K. V. Fite and A. H. Carmichael, for appellant.
Alexander M. Garber, Atty. Gen., for the State.
While section 7007 of the Code of 1907, authorizes the prosecution of the writ of habeas corpus by any person who is "imprisoned or restrained of his liberty in this state, on any charge or accusation or under any other pretense whatever," except when held under process from the federal authority, the writ does not lie, unless he is imprisoned or in actual restraint. In other words, he must be in such control or custody of the person against whom the petition is directed that his body can be produced at the hearing by the said custodian or restrainer. Section 7024 expressly requires the production of the body of the person held, except in case of sickness or infirmity; and it is manifest that this cannot be done unless there is an actual custody or control.
Here the writ in question is directed against the clerk, and who was called upon to produce the body of the petitioner, yet it was clear he had no custody or control over petitioner, other than the mere imaginary implication of a custody or control because of the fact that he had, as clerk, approved the bond of petitioner for his appearance pending the appeal to the Supreme Court. An actual or physical restraint, and not a mere moral one, is necessary to warrant...
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Shuttlesworth v. State, 6 Div. 901
...of conviction of an ordinance ( § 311 Birmingham City Code) which has never been held prima facie bad. Since, under Palmer v. State, 170 Ala. 102, 54 So. 271, one not in custody, e. g., under bail, is not restrained, the court below properly granted the motion to It thus appears that there ......
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Herrmann v. Robinson, 1 Div. 151
...27 Ala.App. 165, 167 So. 740.' If Herrmann was out on bail, the Chief of Police should have stated so in his return. In Palmer v. State, 170 Ala. 102, 54 So. 271, the Chancellor's refusal to issue the writ to the circuit clerk was affirmed. We cannot go outside the record before us. Morris ......
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Hendershott v. Young, 130
...as to be entitled to the writ. This statement of the law is supported by the overwhelming weight of authority.' In Palmer v. State, 170 Ala. 102, 54 So. 271, 272, the Court said: 'Indeed, we do not find a case in the books holding that a person out under bail is so restrained as to entitle ......
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Robinson v. State
...has sought here to go outside the record by using an affidavit of the sheriff dated 83 days after final judgment. Readily, Palmer v. State, 170 Ala. 102, 54 So. 271, Free v. State, 34 Ala.App. 127, 37 So.2d 149, Shuttlesworth v. State, 42 Ala.App. 34, 151 So.2d 734, and Williams v. State, 4......