State v. McPherson

Supreme Court of Alabama

State v. McPherson

51 So. 603, 165 Ala. 140, 1910 Ala. LEXIS 42

DecidedFebruary 3, 1910

StatusPublished

This text of 51 So. 603 (State v. McPherson) is published on Counsel Stack Legal Research, covering Supreme Court of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

State v. McPherson, 51 So. 603, 165 Ala. 140, 1910 Ala. LEXIS 42 (Ala. 1910).

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Opinion

SAYRE, J.

— Petitioner, being on trial before a justice of the peace on a charge of cruelty to an animal, an offense of which the justice of the peace had final jurisdiction if committed within 60 days, was adjudged to be guilty and sentenced to serve at hard labor for 180 days and for costs. This sentence was clearly in excess of the power of the justice of the peace. On the same day [141]*141the justice issued a mittimus to the jailor of Talladega county, which recited the examination of petitioner, the commission of the offense of cruelty to animals, and probable cause for believing that petitioner was guilty, and commanded the jailer to receive and detain him until legally discharged. Thereafter the judge of the city court of Talladega, on the hearing of a writ of habeas corpus, ordered that petitioner he discharged. At the-hearing it was shown to the court without dispute that the offense complained of had been committed less than 60 days before the trial had before the justice of the peace. That being the case, the justice had no power to bind over; but it was his duty to proceed to a judgment of conviction or acquittal, and in the event of a judgment of conviction to sentence the defendant according to law. Both the judgment.of conviction and the mittimus to hold for trial being void, the petitioner was properly discharged.

Affirmed.

Anderson, McClellan, and Mayfield, JJ., concur.

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SAYRE, J.

— Petitioner, being on trial before a justice of the peace on a charge of cruelty to an animal, an offense of which the justice of the peace had final jurisdiction if committed within 60 days, was adjudged to be guilty and sentenced to serve at hard labor for 180 days and for costs. This sentence was clearly in excess of the power of the justice of the peace. On the same day [141]*141the justice issued a mittimus to the jailor of Talladega county, which recited the examination of petitioner, the commission of the offense of cruelty to animals, and probable cause for believing that petitioner was guilty, and commanded the jailer to receive and detain him until legally discharged. Thereafter the judge of the city court of Talladega, on the hearing of a writ of habeas corpus, ordered that petitioner he discharged. At the-hearing it was shown to the court without dispute that the offense complained of had been committed less than 60 days before the trial had before the justice of the peace. That being the case, the justice had no power to bind over; but it was his duty to proceed to a judgment of conviction or acquittal, and in the event of a judgment of conviction to sentence the defendant according to law. Both the judgment.of conviction and the mittimus to hold for trial being void, the petitioner was properly discharged.

Affirmed.

Anderson, McClellan, and Mayfield, JJ., concur.

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Bluebook (online)

51 So. 603, 165 Ala. 140, 1910 Ala. LEXIS 42, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-mcpherson-ala-1910.