State v. Thurman

• Citation: 88 So. 61,17 Ala.App. 656
• Decision Date: 11 January 1921
• Docket Number: 5 Div. 345
• Parties: STATE v. THURMAN.
• Court: Alabama Court of Appeals

88 So. 61

17 Ala.App. 656

STATE v. THURMAN.

5 Div. 345

Court of Appeals of Alabama

January 11, 1921

Rehearing Denied Feb. 1, 1921

Appeal from Circuit Court, Elmore County; B.K. McMorris, Judge.

Habeas corpus proceedings by Tom Thurman to secure his discharge from the penitentiary where he was serving sentence of life imprisonment, after conviction of murder in the first degree. From an order granting the writ, and discharging the petitioner, the State appeals. Affirmed.

J.Q. Smith, Atty. Gen., and Lamar Field, Asst Atty. Gen., for the State.

Hill Hill, Whiting & Thomas, of Montgomery, for appellee.

SAMFORD J.

The petitioner, Tom Thurman, was indicted at a special or adjourned term of the circuit court of Elmore county held November 16, 1903, on a charge of murder in the first degree and at what purported to be a regular term of the circuit court of Elmore county held March 9, 1904, defendant was put upon his trial, was convicted of murder in the first degree and sentenced to life imprisonment in the penitentiary of the state, where he has since been confined, until the suing out of this writ. The judge of the nineteenth judicial circuit, before whom the petition was heard, granted the writ and ordered the petitioner discharged, but an appeal being taken by the state to this court, the order was suspended and petitioner remanded to the custody of the sheriff of Elmore county till such time as he should be discharged by law.

The defendant prayed a discharge on the ground that the judgment and sentence of conviction were void, because the circuit court of Elmore county was not legally in session in March, 1904, by reason of the fact that the act of the Legislature approved October 13, 1903 (Gen.Acts 1903, pp. 488, 566), fixing a regular term of the circuit court for Elmore county in March, 1904, was, and is, unconstitutional and void, and this point is conceded by the state. State ex rel. Attorney General v. Sayre, 142 Ala. 641, 39 South.240, 4 Ann.Cas. 656; Kidd v. Burke, 142 Ala. 625, 38 So. 241. But the state insists that the indictment is valid, and therefore the petitioner, being under indictment for an offense which may be punished capitally, should be held to await a trial before a court having jurisdiction. If this were true the contention of the state would be correct, but is the indictment valid? Waiving a discussion of the question as to the authority of a de facto officer to make an order calling a special term of a circuit court, the order under which the special or adjourned term of the circuit court of Elmore county was held on November 16, 1903, at which the indictment was returned, seems to have been in conformity to an act of the Legislature approved October 12, 1903 (Acts 1903, pp. 566-571), which act is also void. State ex rel. Attorney General, etc., 142 Ala. 87, 38 So. 835, 110 Am.St.Rep. 20. The order of the judge appearing in the minutes of the court dated October 14, 1903, calling the adjourned, or special, term for November 16, 1903, must conform to the requirements of sections 917 or 914 and 915 of the Code of 1896, that being the law in force at that time.

There having been no legal term of the circuit court of Elmore county in session on October 14, 1903, there could be no adjourned term of that session. In order for the term of court, November 16, 1903, to have been legally in session, it must appear from the minutes of the court, that the provisions of section 915 of the Code of 1896 have been complied with, and in the absence of such showing the court is not legally in session and its acts and judgments are void. McMillan v. City of Gadsden, 39 So. 569; Martin v. State, 77 Ala. 1; Knight v. State, 116 Ala. 486, 22 So. 902; Grant v. State, 62 Ala. 233. The last two cases cited, while upholding the order of the judge calling a special session, recognize the necessity of compliance with section 915 of the Code, supra.

It therefore follows that the petitioner having never been indicted by a grand jury legally organized, and there being no valid judgment against him convicting of crime, is entitled to be discharged. The judgment of the trial judge is affirmed and the petitioner is discharged.

On Rehearing.

Under the common law the writ of habeas corpus was used by our ancestors as the great "key of liberty to unlock the prison doors of tyranny"; it was written in the blood of freemen and came to us as a part of our inheritance from those who won it and preserved it, through the centuries, even antedating Magna Charta. It is a part of our civilization preserved to the citizens of this state under section 17 of the Constitution, that it may be used by those who are illegally restrained of their liberty. It cannot be bound down by the thongs of technical pleading, or its swift and effective relief hindered by captious objection or "finespun" theories of procedure. A substantial compliance with section 7010 of the Code of 1907 and its corollary statutes is all that is necessary in order to obtain the issuance of the writ, and, when issued, brings before the judge the petitioner and the cause of his detention. Under section 7027 of the Code, the judge is not confined in his examination either to the case made by the petition or the return, but may "examine in a summary way into the cause of the imprisonment or detention" basing his action on such investigation.

The only statutory limitations placed upon the power of a judge before whom a proceeding in habeas corpus is brought, are found in section 7033 of the Code of 1907, and those limitations are based upon "process from any court legally constituted. ***"

The petition in the case at bar alleges that the judgment of the court under which petitioner is being held is void, and that he is being held without warrant and authority of law. The state concedes this to be a fact, but introduces in evidence...