State v. Richburg
| Decision Date | 03 November 1964 |
| Docket Number | 1 Div. 5 |
| Citation | 168 So.2d 628,42 Ala.App. 495 |
| Parties | STATE of Alabama v. Junior C. RICHBURG and Robert D. Bradley. |
| Court | Alabama Court of Appeals |
Richmond M. Flowers, Atty. Gen., and Paul T. Gish, Jr., Asst. Atty. Gen., for appellant.
Jas. R. Owen, Bay Minette, for appellees.
Appellees filed their petition for a writ of habeas corpus before the Judge of Probate of Baldwin County, Alabama.
The petition alleges the fact of their imprisonment in the county jail 'under a commitment issued on to-wit, June 3, 1964, by R. O. Burgess, a Justice of the peace in Baldwin County, Alabama, without a preliminary trial and your petitioners were bound over to await the action of the Grand Jury of Baldwin County, Alabama, or to await a preliminary hearing.' The petition further alleges there was no probable cause for charging them with the commission of a crime; that appearance bonds were set at $5000, each, which amount is excessive; that by reason of the order of the justice of the peace in binding them over to await the action of the grand jury or holding them for a preliminary hearing without probable cause that they are illegally restrained of their liberty, although they have posted bond in the aforesaid sum and are now at liberty on said bonds.
The sheriff's return to the writ recited that the petitioners were not in his custody at that time nor at the time of the application for the writ.
Thereupon the petition was amended to show that since the filing of the original petition the Mobile Bonding Company has withdrawn from the bond; the petitioners have surrendered themselves to the Sheriff of Baldwin County, and they are now illegally restrained of their liberty 'without possible cause to await the action of the grand jury or held for a preliminary hearing without probable cause.'
At the hearing on the petition counsel for petitioners announced: 'We withdraw the appeal bond in this case and surrender them to the sheriff and he now has them in his custody.'
The solicitor insisted that the sureties on the bail bonds had not surrendered the principals in accordance with Section 209 of Title 15, Code of 1940, therefore the sureties were not released and the bonds were still in effect. A representative of the bonding company was present and upon being questioned by the judge, stated he was willing to come off the bond but it was his understanding that the only way his company could be released was by a compliance with Section 209, Code, supra, that he did not have a certified copy of the bond, but he understood it was 'in transit' from Gulf Shores.
The probate judge stated he was overruling the state's demurrer to the petition, the ground of demurrer being that 'it affirmatively appears on the face of the petition that Petitioners are no longer in the custody and that a writ of habeas corpus will not lie.'
In the ensuing colloquy between counsel and the judge the judge indicated that he considered it incumbent upon the state to show probable cause for holding the petitioners and when the state announced it had no evidence to offer, the judge determined that the petitioners were illegally restrained of their liberty and entered an order discharging them. From this order the State appeals.
It is well settled that to entitle one to a writ of habeas corpus there must be actual or physical restraint, and a person at large on bail is not restrained of his liberty so as to be...
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Rutledge v. State
...presumption that a preliminary hearing not held at the proper time was justifiably postponed by the trial court. State v. Richburg, 42 Ala.App. 495, 168 So.2d 628 (Ala.App.1964); Anderson v. State, 240 Ala. 169, 198 So. 169 (1940). Moreover, the appellant does not have an absolute right to ......
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Ballantine v. Hendricks, Civ. No. 479/1972.
...purposes has been recognized in various state jurisdictions. Gusick v. Boies, 72 Ariz. 233, 233 P.2d 446 (1951); State v. Richburg, 42 Ala. App. 495, 168 So.2d 628, 630 (1964) (habeas corpus denied because relators were not in custody). However, those cases have dealt with pretrial review o......
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Ballantine v. Hendricks, Civil No. 479-1972
...purposes has been recognized in various state jurisdictions. Gusick v. Boies, 72 Ariz. 233, 233 P.2d 446 (1951); State v. Richburg, 42 Ala. App. 495, 168 So.2d 628, 630 (1964) (habeas corpus denied because relators were not in custody). However, those cases have dealt with pretrial review o......
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Braden v. State
...not for habeas corpus. Ex parte Simpson, 3 Ala.App. 222, 57 So. 518; State v. Humphrey, 125 Ala. 110, 27 So. 969; State v. Richburg, 42 Ala.App. 495, 168 So.2d 628(3). Upon indictment by a properly chosen grand jury, then a determination of there being probable cause has been made so as to ......