State ex rel. Russell v. Jones

• Decision Date: 01 June 1943
• Docket Number: 3 Div. 857.
• Citation: State ex rel. Russell v. Jones, 31 Ala.App. 208, 14 So.2d 590 (Ala. App. 1943)
• Parties: STATE ex rel. RUSSELL, Director, v. JONES, Judge.
• Court: Alabama Court of Appeals

14 So.2d 590

31 Ala.App. 208

STATE ex rel. RUSSELL, Director, v. JONES, Judge.

3 Div. 857.

Alabama Court of Appeals

June 1, 1943

Rehearing Denied June 15, 1943.

Wm N. McQueen, Acting Atty. Gen., and John W. Vardaman, Asst Atty. Gen., for petitioner.

Wm. C. Rayburn, of Guntersville, for respondent.

PER CURIAM.

Original petition for writ of mandamus to require the Honorable Walter B. Jones, as Judge of the 15th Judicial Circuit, to vacate an order granting bail to a convict, one Charley Summers pending said convict's appeal to this court in a proceeding of habeas corpus.

No other remedy is available to the State to effect the reincarceration of said convict pending the outcome of the habeas corpus appeal, so mandamus is proper to coerce the performance of the official act sought if the lower court was without jurisdiction to grant such bail. 38 C.J., Sec. 161 p. 645; Sec. 167, p. 647. Use of the writ at common law has been to confine such court to a lawful exercise of its prescribed jurisdiction as well as to compel it to exercise its authority when it is its duty to do so. Roche v. Evaporated Milk Ass'n, 63 S.Ct. 938, 941 (6, 7), 87 L.Ed. ---, decided May 3, 1943. It has been used when seeking to compel the allowance of bail pending appeal (38 C.J. Sec. 163, p. 646; Ex parte Rogers, 17 Ala.App. 172, 82 So. 785; State ex rel. Reynolds v. Weaver, 167 Ala. 672, 52 So. 638; Ex parte Byrd, 172 Ala. 179, 55 So. 203), and, conversely, of course it is equally appropriate to compel official action in vacating an order granting bail when such an order was without legal warrant.

The demurrer taking the point that mandamus is not the proper remedy is therefore untenable.

The facts are: Charley Summers, a convict serving a term of imprisonment in the penitentiary for grand larceny, petitioned the said judge for a writ of habeas corpus, contending that he had served his full sentence. Upon hearing of the petition, relief was denied and Summers was remanded to the custody of the prison authorities. He then gave notice of appeal to this court in accordance with Section 369, Title 15, Code 1940, which was accordingly granted and the order of remandment suspended pending appeal.

The said circuit judge allowed him bail pending the outcome of his appeal, believing that he was so entitled under said Section 369. It is this action which the instant proceeding challenges.

As observed in brief by the able Assistant Attorney General: "The only question raised in this (mandamus) proceeding is the right of a prisoner serving a term in the State penitentiary to be admitted to bail pending appeal from a habeas corpus proceeding in which the writ of habeas corpus was denied."

Decision turns upon a proper construction of said Section 369, the pertinent part of which is: "Any party aggrieved by the judgment on the trial of a habeas corpus may appeal to the supreme court or the court of appeals; and when, on habeas corpus, any person held in custody under a charge or conviction for crime or for extradition as a fugitive from justice from any other state, is discharged from said custody; or when any person held in custody under an indictment by...