Shuttlesworth v. State

151 So. 2d 734, 42 Ala. App. 34, 1962 Ala. App. LEXIS 146

Opinions

CATES, Judge.

This proceeding — whether appeal or petition for mandamus — is another consequence of Shuttlesworth v. Birmingham, 41 Ala.App. 697, 130 So.2d 236, cert. den. 272 Ala. 708, 130 So.2d 236.

On our refusal to grant bail (Ex parte Shuttlesworth, 41 Ala.App. 319, 138 So.2d 710) and a like action by the Supreme Court (273 Ala. 228, 138 So.2d 712), Shuttlesworth armed with the order in Ex parte Shuttlesworth, 82 S.Ct. 551, 7 L.Ed.2d 548, was enlarged on $300 bail by the United States District Court for the Northern District of Alabama March 1, 1962.

March 28, 1962, Shuttlesworth filed in the Circuit Court of Jefferson County a motion for rehearing of a former order. This former order reads:

“Petition for Writ of Habeas Corpus being presented this 26th day of February, 1962, and the same being understood, the Court is of the opinion that petition should be and the same is hereby denied.

“DONE and ORDERED this 26th day of February, 1962.

(Signed) “George Lewis Bailes

“CIRCUIT JUDGE”

This entry is merely an opinion. Weems v. Weems, 253 Ala. 205, 43 So.2d 397. Thus, the cause remained in fieri until June 12, 1962, when the court, by a proper form of judgment, granted the City’s motion to strike the petition for rehearing.

Ground 1 of the City’s motion to strike was that the court was without jurisdiction. This ground — in the sense of the court’s being unable by law to grant relief — was good because:

(a) Shuttlesworth was no longer detained ; and

(b) Code 1940, T. 15, § 27, precludes a court from going behind the record proper: Shuttlesworth’s own petition showed the regularity of his detention.

As Rives, J., said in Wiman v. Argo, 6 Cir., 308 F.2d 674, at 677:

“Habeas corpus is available in Alabama to attack a judgment of conviction only when its invalidity appears on the face of the proceedings; that is, of the record proper, the indictment, judgment, etc. Vernon v. State, 1941, 240 Ala. 577, 200 So. 560, 563. The remedy where the alleged invalidity appears in the evidence or must be established by parol testimony is the common-law writ of error coram nobis. Johnson v. Williams, 1943, 244 Ala. 391, 13 So.2d 683, 686. * * * ”

Here, as was pointed out in the bail application :

“The final judgment of this court granted a motion of the City to strike the transcript of the evidence. Upon consideration of the record proper, the judgment of conviction in the circuit court was affirmed on the authority of a companion case, White v. City of Birmingham, [41] Ala.App. [181] 130 So.2d 231.

“No question was presented on that record as to the validity of ordinance No. 1487-F which was considered along with a regulation of the Birmingham Transit Company in a declaratory judgment action reported in Boman v. Birmingham Transit Co., 5 Cir., 280 F.2d 531 (1960).

“The ordinance here in question is appended as a part of footnote 7 in the case of Baldwin v. Morgan, 5 Cir., 251 F.2d 780 (1958), at page 786.

“In the case of Shuttlesworth v. City of Birmingham, supra, we were, because of a delay attributable solely to the appellant, precluded from having before us any of the evidence adduced before the trial court. In other words, our consideration was necessarily confined solely to the record proper. We were then and there confronted only with those assignments of error which referred to rulings of the trial court with respect to the record proper. The only ruling assigned, specified and argued in brief was that denying a motion to quash the complaint.

“As Harwood, P. J., in the companion case of White v. City of Birmingham, supra, points out, a motion to quash is not appropriate practice, and the ruling of the trial judge thereon is not subject to review, ‘in the unrevisable discretion of the trial court.’

“The Supreme Court of Alabama thereafter denied certiorari, as did the Supreme Court of the United States, so that the original judgment of the circuit court has become final and the sentence imposed thereunder is currently being obeyed and endured, at least so far as Shuttlesworth’s confinement in the city jail is called for.” —138 So.2d 710, at 711. (Italics supplied.)

We are clear that habeas corpus is not the proper procedure in this case to raise a Fourteenth Amendment question which would involve going behind a judgment of conviction of an ordinance (§ 311 Birmingham City Code) which has never been held prima facie bad.

Since, under Palmer v. State, 170 Ala. 102, 54 So. 271, one not in custody, e. g., under bail, is not restrained, the court below properly granted the motion to strike.

It thus appears that there is no detention within the meaning of our law of habeas corpus. Palmer v. State, supra, and authorities therein. This being so, the proceeding has become moot and is due to be dismissed under Howard v. City of Bessemer, 269 Ala. 474, 114 So.2d 164.

Dismissed.