Towery v. State

143 Ala. 59

• Court: Supreme Court of Alabama
• Decided: November 15, 1904
• Status: Published

Opinion

DENSON, J.

The writ in this case was sued out under the statute; and the jurisdiction conferred by the statute on the Chancellor to entertain and hear the petition is to be, and was in this case, exercised in vacation; and the proceeding Avas original, and by it the validity of the process, under Avhich petitioner was held, and the proceedings had in the Circuit Court were draAvn in question collaterally. The general principle, then, prevails, that, when a record or process is collaterally assailed, it must be for illegality, not for error or irregularity. The statute affirms this principle, in declaring that on the return to a Avrit of habeas corpus, there is no “Authority to inquire into the regularity or justice of any order, judgment, decree, or process Af any court legally constituted,” etc. — Code, § 4837; Kirby v. State, 62 Ala. 51.

The ground upon which was rested the supposed right of the appellant.to be discharged from custody in this case, as shoAvn by his petition and the proceedings had before the Chancellor, necessarily involved the regularity of the proceedings had and order made in the circuit court, in a trial had of the petitioner in that court-on an indictment for murder, and this was a good reason for the Chancellor’s refusal to discharge the petitioner, appellant, from custody.

It is also doubtful whether habeas corpus is defendant’s remedy. Ex parte Winston, 52 Ala. 419; 1 Bishop’s Criminal Practice, § 587; Wright’s case, 7 Ind. 324; Ex parte Rutheven, 17 Mo: 541; Gillespie v. Rump, 72 N. E. Rep. 135; Ex parte Smith, 78 Pacific Rep. 1035.

We must not be understood as intimating any opinion as to the merits of appellant’s insistence that he has been in jeopardy.

The order of the Chancellor appealed from is affirmed.

McClellan, C. J., Tyson, and Doavdell, J. j., concurring.