Opinion
4 Div. 276.
January 11, 1927. Rehearing Denied April 5, 1927.
Original petition of Peter Harper for habeas corpus. Writ denied.
The petition alleges that petitioner was arrested April 23, 1926, upon a warrant issued out of the county court of Russell county charging him with the offense of violating the prohibition law; that petitioner made bond; and that there was thereafter docketed against him a case in said county court, the docket entry being as follows:
"No. 2001. County Court — June Term, 1926.
"Attorneys: The State v. Henry Harper, alias Peter Harper. Charge — V. P. L. Sheriff's Return. — Executed by arresting defendant 23d April, 1925. P. M. Daniel, Sheriff."
It is further averred that on June 7, 1926, petitioner was tried in the county court upon the case as docketed; that the judgment entries on said county court docket are in printed form with blanks to be filled in writing; and that the judgment entered against petitioner upon the trial of said case is as follows:
"June 7, 1926. On hearing the evidence in this case the court is satisfied of the guilt of the defendant and hereby awards the following judgment: That the defendant be fined __________ dollars and costs of this proceeding, and, in addition thereto, that the defendant perform hard labor for the county of Russell for a period of 6 months and 88 days to pay costs."
It is averred that petitioner took an appeal from said judgment to the circuit court and perfected his said appeal; that before said appeal was heard and determined petitioner was advised that the foregoing judgment was illegal and void, and petitioner dismissed his said appeal to the circuit court, whereupon the sheriff took petitioner into custody; that while in the custody of the sheriff petitioner filed a petition with the circuit judge, praying the writ of habeas corpus alleging the invalidity of the judgment in the county court; that the circuit judge denied his petition, and petitioner prayed for and obtained an appeal from said judgment to the Court of Appeals, and applied to the circuit judge to be admitted to bail, which was denied; that petitioner remained in the custody of the sheriff and is now in the custody of said sheriff and is deprived of his liberty without legal cause or excuse.
Petitioner here prays for the writ of habeas corpus to be issued to the sheriff and sets up the insufficiency of the statement of the offense upon the docket of the county court as "V. P. L.," while the offense charged in the warrant upon which he was arrested is "violating the prohibition law," and failure of the judgment there entered to conform to the statutes (Code, 1923, §§ 3831, 4622), in that it fixes no fine or penalty, and, further, that defendant was given no opportunity to pay the costs assessed or to confess judgment therefor.
Frank M. de Graffenried, of Seale, for appellant.
The case docketed against petitioner in the county court charged no offense. Poore v. State, 17 Ala. App. 143, 82 So. 627. A judgment should be complete and certain in itself, and not a mere memorandum of the action of the court. Any person detained under a void judgment may be discharged therefrom; habeas corpus is the proper remedy. 15 R. C. L. 570; Bell v. Otts, 101 Ala. 186, 13 So. 43, 46 Am. St. Rep. 117; Robertson v. State, 20 Ala. App. 514, 104 So. 561; Ex parte Lange, 18 Wall. 163, 21 L.Ed. 872; State v. Thurman, 17 Ala. App. 656, 88 So. 61.
Harwell G. Davis, Atty. Gen., and Thos. E. Knight, Jr., Asst. Atty. Gen., for the State.
Brief of counsel is set out in the opinion of the court.
As clearly and accurately pointed out by the Attorney General, from whose excellent brief we quote, "this petition for writ of habeas corpus must be denied for the following reason: The petition fails to set up any facts tending to show that the petitioner should not be held, under bail, on the original warrant to answer the charges in the affidavit." The cause is still pending in the circuit court where it must be tried de novo.
The appeal having been perfected to the circuit court, there is no authority of law for dismissing same. Code, §§ 3250 and 3251, relate only to appeals taken to the Supreme Court and Court of Appeals. Green v. State (Ala.App.) 106 So. 683 (section 3 of opinion). Therefore the judgment of the county court having been superseded by the appeal to the circuit court, this court cannot consider the validity vel non of that judgment in determining whether or not the petitioner is entitled to the writ.
21 Ala. App. 201.
No facts are shown attacking the original warrant. The petitioner should be admitted to bail pending the determination of the cause in the circuit court. However, it might be well, though unnecessary, to state that the judgment of the county court was not void, and was at most voidable.
A judgment which usurps no authority or jurisdiction is not void. The writ of habeas corpus will not be granted where a judgment merely voidable is attacked. Ex parte Simmons, 62 Ala. 416 (sections 1 and 2 of opinion); Bryant v. State, 15 Ala. App. 643, 74 So. 746; Wright v. State, 12 Ala. App. 253, 67 So. 798.
The fact that the trial docket showed that the offense was docketed by abbreviation would not affect the judgment which is referable to the affidavit. The petition affirmatively informs this court that the defendant was charged with a violation of the prohibition law and that he was convicted upon the charge embraced in that affidavit.
The petitioner should be held on bail to abide by the findings of the circuit court of Russell county on the charge embraced in the original affidavit or a complaint which may be filed by the solicitor in the cause, to be tried de novo.
Writ denied.