Ex parte Ross

65 So. 782, 187 Ala. 16, 1914 Ala. LEXIS 576

Opinion

SOMEBVILLE, J.

The petitioner’s theory is that the judgment of the committing magistrate by which he was bound over to answer any indictment that might be found against him by the grand jury of the law and equity court gave jurisdiction of his alleged offense to that court in such sense as to exclude the circuit court ■—though of coordinate jurisdiction—from entertaining-jurisdiction of any prosecution for the same offense; which assumes, of course, that the grand jury of that court was without authority to return an indictment therefor.

Counsel for petitioner cite no authority which gives any color of support to this contention. On the contrary, we think the question has, in principle and in effect, been decided adversely to petitioner in the cases of Ex parte Robinson, 108 Ala. 161, 18 South. 729, and State v. Vaughn, 121 Ala. 41, 25 South. 727.

In Robinson’s Case it was said, per Coleman, J.:

“The purpose of a preliminary examination in all cases is to secure the presence of the prisoner, to answer such charge as may be brought against him, and by statute it is declared that 'the essence of all undertaking of bail is the appearance of the defendant at court.’ ”

It was there held that there was no question of jurisdiction involved, and hence no obstacle to- the issuance of other warrants of arrest for additional examinations which might be followed by judgments of discharge or committal.

In Vaughan’s Case it was said, per McClellan, C. J.:

“And Avhy is not the proposition entirely sound? What is there to stand in the way of such second proceeding against a defendant who has been admitted to bail? He has not been convicted; he has not been acquitted; he has not been put in jeopardy. There is no plea known to the law that can be interposed betAveen him and a neAV investigation folloAved by a neAV and different order.”

To what end may the accused be bound over under a second proceeding, if not for action by the grand jury? And if a magistrate may thus initiate a second examination which may result in an indictment, upon what principle can it be claimed that any lawful grand jury cannot of its own motion investigate and indict an accused person who has not as yet been indicted by any coordinate body?

The defendant’s plea in abatement was without merit, and the demurrer thereto was properly sustained.

What our conclusion would be if a previous indictment were pending for trial in the law and equity court need not be now determined.. See, however, Bell v. State, 115 Ala. 25, 37, 22 South. 526.

We are not to be understood as affirming that mandamus is a proper remedy in cases of this character. See Ex parte Watters, 180 Ala. 523, 61 South. 904. Independently "of that consideration, the writ of mandamus will be denied, and the petition dismissed.

Writ denied.

Anderson, C. J., and Mayfield and Gardner, JJ., concur.