Smotherman v. State
| Decision Date | 16 June 1904 |
| Citation | 140 Ala. 168,37 So. 376 |
| Parties | SMOTHERMAN v. STATE. |
| Court | Alabama Supreme Court |
Appeal from Criminal Court, Jefferson County.
Application by John Smotherman against the state for writ of habeas corpus. From an order denying petitioner his discharge, he appeals, and also petitions for writ of error. Petition for writ of error denied. On appeal, order affirmed.
John Smotherman was arrested by a police officer in the city of Birmingham, and incarcerated in the city prison. Thereupon he sued out a writ of habeas corpus before the judge of the criminal court of Jefferson county, asking for his discharge from custody. The return of the warden of the city prison in answer to the writ showed that the petitioner was held by him under an affidavit and warrant made before and issued by a justice of the peace in Shelby county, charging said Smotherman with grand larceny, the warrant being returnable before the judge of probate of Shelby county. Upon the hearing of the petition these facts and other facts stated in the opinion were shown. The petitioner offered to introduce evidence tending to show that he was not guilty of the offense charged, and that he was not in Shelby county at the time the larceny was alleged to have been committed. Upon objection on the part of the state, the court refused to allow the introduction of the evidence, and to this ruling the petitioner excepted. Upon the hearing of the cause the judge of the criminal court made an order denying the application for the discharge of the petitioner, and remanded him to the custody of the warden of the city prison.
B. M Allen, for petitioner.
Massey Wilson, Atty. Gen., for the State.
The granting of writs of error is authorized and regulated by sections 4327-4332 of the Code of 1896. The writ can only be awarded on a judgment rendered by a court in a criminal case and for some error of law apparent on the record of the primary court. Code 1896, § 4327. The order made by the judge of the criminal court of Jefferson county denying petitioner's prayer for discharge on habeas corpus is not a judgment of the city court in a criminal case within the terms of this statute, nor are the proceedings in such case shown of record in that court. The petition now before us, therefore, presents no case for a writ of error.
The petitioner, however, also appealed from the order of the city judge refusing to discharge him. This is the method for bringing that order under review (Code 1896, § 4314), and upon the appeal we will inquire into the legality of his detention. The warrant upon which appellant was arrested was issued by a justice of the peace of Shelby county. It was addressed, "To any lawful officer of said [Shelby] county." The arrest was made in Jefferson county by a policeman of the city of Birmingham, and the prisoner was delivered to the warden of the city jail, by whom his body was produced before the judge of the criminal court at the hearing. This warrant of the Shelby justice was not indorsed by any magistrate of Jefferson county, as required by section 5219 of the Code of 1896, to give it efficacy...
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