Opinion
6 Div. 98.
June 23, 1931.
Appeal from Probate Court, Blount County; J. C. Nation, Judge.
Petition of T. B. Deaver for habeas corpus to fix bail. From a judgment or order denying bail, petitioner appeals.
Affirmed.
P. A. Nash, of Oneonta, for appellant.
All persons, before conviction, shall be bailable by sufficient sureties, except for capital offenses when the proof is evident or the presumption great; and excessive bail in no case shall be required. Const. 1901, § 16; Code 1923, §§ 3370, 4305, 4310, 4329; Ex parte Sloane, 95 Ala. 22, 11 So. 14; Ex parte King, 86 Ala. 620, 5 So. 863; Ex parte Richardson, 96 Ala. 110, 11 So. 316; Ex parte Bonner, 100 Ala. 114, 14 So. 648; Ex parte Carson, 17 Ala. App. 345, 85 So. 827; Ex parte Vaughan, 44 Ala. 417. Petitioner is entitled to inquire into and ascertain by legal evidence the names and addresses of all witnesses examined before the grand jury and have before such hearing such witnesses as may have been before the grand jury and interrogated and ascertained from the legal testimony such witnesses may know, and a denial of such to the petitioner is a denial of his constitutional right. Const. 1901, § 16; Code 1923, §§ 3362, 4305.
Thos. E. Knight, Jr., Atty. Gen., for the State.
Brief did not reach the Reporter.
Upon a petition addressed to the probate judge of Blount county alleging that petitioner was illegally restrained of his liberty by George McPherson, sheriff of said county, a writ was issued by said judge directed to the sheriff aforesaid, commanding him to have the body of petitioner before him at a fixed time, together with the cause of his detention, etc. The Sheriff responded to the writ by producing the petitioner as commanded, and answered that he was holding the petitioner on a charge of murder in the first degree, under a mittimus or warrant issued by J. C. Nation, judge of probate, and also under an indictment by the grand jury of Blount county.
Having the petitioner before him it was the duty of the judge, under section 4326 of the Code of 1923, in a summary way, to examine into the evidence adduced and to make such disposition of the prisoner as the justice of the case requires. The writ of habeas corpus is one of the strong arms of our government to be used by those who are illegally restrained of their liberty. It cannot be bound down by the thongs of technical pleading, or its swift and effective relief hindered by captious objection or "fine spun" theories of procedure. State v. Thurman, 17 Ala. App. 656, 88 So. 61.
It became important upon this hearing to ascertain whether the defendant was being held upon a valid indictment. If the indictment was valid, the solicitor might rest upon it, and, in the absence of further evidence, the court would presume the crime to be in the highest degree charged in the indictment, and bail would be denied. State v. Lowe, 204 Ala. 288, 85 So. 707. It is contended, on the other hand, that, if it should be made to appear by the evidence that no witnesses appeared before the grand jury, and that the grand jury returned the indictment without any evidence, the indictment would be void, and the state would be forced to rely on the mittimus issued by the judge of probate, in which event the state would be forced to develop its case beyond the introduction of process. If the indictment was in fact returned without evidence before the grand jury, this fact may be tested on the trial by motion to quash. Perkins v. State, 66 Ala. 457; Walker v. State, 17 Ala. App. 555, 86 So. 257. But the indictment offered in evidence by the state appears on its face to be in all things regular, and cannot in a collateral proceeding be attacked, as is here attempted. Benson v. State, 124 Ala. 92, 27 So. 1; Kirby v. State, 62 Ala. 51.
For the reason that this case must be tried before a jury, we do not discuss the evidence further than to say that, with the presumption in favor of the indictment and of the findings of the trial judge, we find no legal reason to disturb his finding. The order denying bail is affirmed.
Affirmed.