State v. Fuller

41 So. 990, 147 Ala. 164, 1906 Ala. LEXIS 254

Opinion

DENSON, J.

Section 4817 of the code of 1896 provides that a petition for habeas corpus when the person making it is confined in the penitentiary, must be addressed to the judge of the city court, or to the’ nearest circuit judge or chancellor. The petition in this case shows that the petitioner was confined in the peniten tiary at Spigners in Elmore county. We have no trouble in reaching the conclusion that the petition was properly -addressed to the chancellor of the north eastern chancery division which embraces the county of Elmore. And, as the writ was granted more than 10 days before the time fixed by law for the holding of the next term of the circuit court to be held for Elmore county, it was properly made returnable before the chancellor of that chancery division, and he had the power to make it returnable before him at Anniston. — Code 1896, § 4819.

There is no merit in the motion to dismiss the appeal. The writ was made returnable before the chancellor at Anniston; if it can be said of the cause that it.was pending in any court, it was the chancery court of Calhoun county, and the register in chancery of that'county was pro hac vice, the clerk for the purpose of making, certifying, and transmitting the transcript of the record. The record is here certified by the register and also by the chancellor. — Code 1896, § 4314. The case presented by the record is rather a novel one and one not entirely free from difficulty. The defendant was indicted at the spring-term, 1896, of the circuit court held for Cleburne county, for the, crime of murder. He was twice convicted in that court, but the judgment of conviction was reversed each time and the cause remanded. After the second reversal the cause was transferred to the county court of Cleburne county and was there tried in January, 1898; the defendant was convicted the third time and sentenced to imprisonment in the penitentiary for thirty years. On appeal the judgment of the county court was affirmed by this court. — Fuller’s Case, 117 Ala. 36, 23 South. 688.

The county court of Cleburne was created by an act of the general assembly approved February 16, 1897. — Acts 1896-97, p. 802. The first section of the act confers on the court the same jurisdiction and powers of the circuit-court.' It is provided, in the thirty-first section (page 814), of the act that at any time after the spring- term,. 1897,' of the circuit court of Cleburne county, when any person is confined in the jail of said county on a charge of felony in the circuit court, and is not entitled to bail, or is tmable to give bail, said cause shall be transferred to.the said county court, and the clerk of the circuit court shall transfer said cause and the same shall be tried in the county court as if the indictment therein had been returned into the county court in the first instance.

The petitioner was confined in the jail of Cleburne county and was unable to give bail. The cause against him was docketed by the clerk of the circuit court, who was ex-officio clerk of the county court, on the county court docket after the spring term, 1897, of the circuit court had been held, and not within 30 days before the succeeding term of the circuit court. Under the statute the duty of the clerk to so docket the case is made mandatory. The case was tried in the county court without any question being raised by the petitioner (defendant there) as to the jurisdiction of the county court to hear and determine the cause.

It is now insisted by the petitioner (appellee) that the part of the thirty-first section of the county court act heretofore referred to, is in conflict with section 5, of article 6, of the constitution of 1875 (section 143 Const. 1901), and, therefore, that its enactment was not within legislative competency . The case of Adcock v. State, 142 Ala. 30, 37 South. 919, is relied upon as supporting the contention. The act construed in the case of Ad-cock, is one entitled: “An act to further regulate the practice and procedure of the circuit court of Olay county, Alabama,”.and was approved December 13, 1898.— Acts 1898-99, p. 19G. The first section provides: “That from and after the 1st day of March, 1899, no grand jury shall be drawn, impaneled and summoned for the circuit court of Clay county, except upon the order of the circuit judge of said court, such order must be forwarded to the clerk thereof, and filed by him at least twenty days before the first day of the term of said court, for which said grand jury shall be called. All indictments returned by such grand jury shall be immediately transferred by the clerk of said court to the county court of Olay county, for trial, and it shall take no order of the court to carry this provision into effect.” A grand jury was organized in the circuit court without the judge first making the order provided for by the act, and the indictment against Adcock was returned by such grand jury. Adcock moved that the cause be transferred to the county court, and pleaded in abatement of the indictment, and upon the ground that the grand jury was illegally organized. The circuit court overruled the motion and plea and tried the defendant. This court on appeal from the judgment of conviction, held that the provisions of the act of December 13, 1898, “whereby it was intended to deprive the circuit court of jurisdiction to try indictments thereafter returned into that court, and to deprive that court of a grand jury except when the same should be ordered by the judge of the court prior to the convention of the court, were violative of section 5, article 6, of the constitution of 1875 (constitution of 1901, § 143).” In the Adcock Case the transfer had not been made, and the state resisted the transfer and insisted on the trial going on in the circuit court. And it might be conceded that, if the defendant in the case at bar had raised the question in the county court and had there insisted thar his case should remain in the circuit court, the county court would have been without authority to try the cause. It is not necessary, however, to determine that question here; nor is it necessary to determine whether the act in question infringes on the constitutional jurisdiction or right of the circuit court to try the cause if the question had been raised by the state as was done in the Adcock Case. — Ex parte Hickey, 52 Ala. 228. It was entirely within the legislative competency to create the county court and give it jurisdiction concurrent with the circuit court, and we do not doubt that it was also within legislative competency to provide, with the consent of parties, for the removal of causes pending in the circuit court to the county court, and vice versa. — Hickey’s Case, supra; Adcock’s Case; supra; Ex parte Rice. 102 Ala. 671, 15 South. 450. The county and circuir courts are of concurrent, coequal jurisdiction of the crimes of the kind charged in the indictment against the petitioner, and sit within the same territorial jurisdiction. The record liere, it is true, shows that there was uo order of transfer made in the circuit court, and it must he conceded that the cause was placed on the docket of the county court by the clerk in pursuance of the terms of the act creating the county court. But the record affirmatively shows that when the cause was called for trial in the county court, it appeared that the presiding judge was incompetent on account of having been of counsel in the'prosecution, and the prosecuting attorney and the defendant in person and by counsel in open court, agreed upon an attorney to act as special judge in the trial of the cause; that the defendant was arraigned in open court and pleaded a former acquittal of murder in the first degree, which plea was sustained by the record of the former trial of the circuit court, and was thereupon confessed by the solicitor; that the defendant was then put on trial on the indictment for murder in the second degree and pleaded not guilty. He was convicted, appealed to this court, and the judgment of the county court was affirmed. No question of the jurisdiction was raised until this petition was filed.

We have seen that the county court is a court having jurisdiction of the crime — the subject-matter — and by the course of conduct on the part of the defendant, and of the representative of the state, “the existence of ali facts essential to the jurisdiction of the county court was affirmed, and upon the affirmation, the court could not but act, judicially.” — Ex parte Rice, 102 Ala. 671, 15 South. 450; Railway Co. v. Ramsey, 22 Wall. (U. S.) 322, 22 L. Ed. 823. As was said by Brickell, C. J., speaking for the court in Ex parte Rice, supra: “Consent cannot confer jurisdiction, it is true, but it is jurisdiction of the subject-matter which is derived from the law, which parties may not by consent confer. , When jurisdiction of the subject-matter is conferred bylaw, jurisdiction of the person may be acquired by the acts of consent of parties.” On the authority of that case we hold, that by the course of conduct which the record shows the petitioner pursued in the county court, that court acquired jurisdiction of his person and lie cannot now be heard to urge its lack of jurisdiction, or that the cause was not properly in that court.

We are at the conclusion that the chancellor should have denied the prayer of the petition, and a judgment will be here rendered setting aside the order made by the chancellor, and dismissing the petition.

Reversed and rendered.

Weakley, C. J., and Haralson and Dowdell, JJ., concur.