State v. Hill
Decision Date | 11 October 1966 |
Docket Number | 7 Div. 855 |
Citation | 190 So.2d 925,43 Ala.App. 380 |
Parties | STATE v. A. C. HILL. |
Court | Alabama Court of Appeals |
William W. Rayburn, Dist. Atty., Gadsden, for appellant.
Richmond M. Flowers, Atty. Gen., for the State.
The hearing below was on habeas corpus for extradition. Judgment discharged the petitioner.
We are quite nonplussed as to how this cause strayed into our curtilage in the first place. The judgment below reads in part:
'On this the 23rd day of June, 1966, comes the State by its District Attorney, and the Petition for Writ of Habeas Corpus in this cause having been heretofore, on February 23, 1966, submitted and taken under advisement by the Court; now, It being made to appear to the Court that the rendition warrant of the Governor of the State of Alabama has been recalled by said Governor, this cause is declared moot by the Court, and It is ordered and adjudged by the Court that the defendant Petitioner, A. C. Hill, be and he is hereby released and discharged from custody.'
Moreover, the notice of appeal expressly refers to the foregoing recital in the judgment as to the withdrawal of the warrant.
25 Am.Jur., Habeas Corpus, § 74, reads:
--citing State ex rel. Nisbett v. Toole, 69 Minn. 104, 72 N.W. 53, 38 L.R.A. 224, and Work v. Corrington, 34 Ohio St. 64. See also 22 Am.Jur., Extradition, § 53.
Our statute expressly recognizes the existence of this power. Code 1940, T. 15, § 69, reads:
The revocation of the rendition warrant does not appear of record. The testimony was taken February 23, 1966, and the cause taken under advisement. We must assume the revocation was exhibited informally.
We consider two principles support the trial judge in dismissing.
First, the revocation was analogous to a pardon exhibited to the court on allocutus after conviction: its effect--so far as habeas corpus was concerned--was to bar detention.
Secondly, we note that on habeas corpus applications practice admits of modes or proof less strict than prevails generally. See Hussey v. State, 87 Ala. 121, 6 So. 420.
We note that the District Attorney referred to the judgment recital in his appeal. However, he made no showing, e.g., by motion for new trial or by counter affidavit, to contest the existence of the revocation in the circuit court. See Grissett v. Birmingham, 27 Ala.App. 555, 176 So. 317.
Under Code 1940, T. 15, § 369, as amended, we review habeas corpus on appeal. The standards are:
-- * * *'Subsection (d).
The action of revocation becomes a matter of public record either in the office of the Governor or of the Secretary of State. Therefore, we consider as an exception to the rule as to confessions of error, 1 that here the Attorney General's motion to dismiss is to be taken as controlling.
The District Attorney's notice of appeal becomes functus officio once jurisdiction of this court attaches. Thereafter the Attorney General is leading counsel for the State.
In Gambrell v. Bridges, 266 Ala. 302, 96 So.2d 182, Simpson, J., writes:
* * *'
Again, in Bruner v. State, 265 Ala. 357, 91 So.2d 224:
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