Johnson v. State

82 Ala. 29

Opinion

SOMERVLLE, J.

— The plea of former jeopardy or acquittal, under whichever head it may be classed, was fatally defective, and the demurrer to it was properly sustained.

The affidavit and warrant, under which the appellant was arrested by the justice of the peace, and under which the pi'oceedings before him occurred, alleged no probable cause to believe that the defendant was guilty of the offense charged. The constitution prohibits the issue of any warrant to seize or arrest any person, “ without probable cause, supported by oath or affirmation.”' — -Const. 1875, Art. 1, § 6; Code, 1876, §§ 4650, 4651. For this reason, the process was void, and the proceedings did not put the defendant in jeopardy. He was entitled at any time to his discharge under the writ of habeas corpus, on petition to the proper tribunal.

There are some other objections to the sufficiency of the plea, which need not be considered.

Affirmed.