Ex parte Charleston , 107 Ala. 688 ( 1894 )

HARALSON, J.

Proceedings in a case of bastardy partake of the nature of both a civil and a criminal suit, and is quasi-criminal. -A party charged with bastardy, may be arrested and carried before a justice of the peace, and if, on examination, it appear there is probable cause for believing him to be guilty, lie must be required to give bond for his appearance at the next term of the circuit court, and in default of giving bond and surety required, he must be committed to jail. The duty of the justice in such a case, as it - is in many offenses with which parties are charged before him, is purely preliminary. Imprisonment follows, in default of a bond, in the same way, just as surely and effectually as in a purely criminal caso, and it may be as unlawful in'the one as in the other. — Collins v. The State, 78 Ala. 434; Smith v. The State, 73 Ala. 11. The habeas corpus statute provides, that “any person, who is imprisoned or restrained of his liberty in this State, on any criminal charge or accusation, or under any other pretense whatever, except, &c., * * * * may prosecute the writ of habeas corpus according to the provisions of this chapter, to inquire into the cause of such imprisonment and restraint.” — Code, § 4761. According to the practice in this State, when a committing magistrate, on preliminary examination, in default of the bail prescribed, commits a party charged with a bailable offense, the prisoner has the right to the writ of habeas corpus, and is entitled to require of the judge granting it, that he shall hear and pass upon the question of his guilt, — to be discharged, if it shall appear to him, that no offense has been committed, or that there is no probable cause for charging him therewith. — Code, §§4762, 4785 ; Esparte Mahone, 30 Ala. 49 ; Ex parte Champion, 52 Ala. 311; Ex parte Riley, 94 Ala. 82 ; Ex parte West, 14 So. Rep. 902.^*

This statute is broad enough to cover unlawful imprisonment by a justice of the peace, of a party in a bastardy proceeding, as well as on any other charge; and why his commitment, after preliminary examination, in such a case, may not be inquired into, to ascertain if the restraint of the liberty of the party charged and imprisoned is not unlawful, as is here questioned, it is difficult to comprehend.

The demurrer to the petition for the writ, questioned simply the jurisdiction of the probate judge to enquire into the cause of the applicant’s imprisonment, because it showed that he was committed by a justice of the peace in a bastardy proceeding, the legality of which, the judge could not investigate. The demurrer should have been overruled, and the probate judge should have proceeded to try the cause, as he would have done in the case of a criminal brought before him on habeas corpus after commitment by a justice of the peace, and having declined to do so, mandari us is the proper remedy. — Ex parte Jones, 94 Ala. 34; Ex parte Champion and Ex parte Mahone, supra.

Let our conclusions be certified below, and a rule nisi is granted for the judge of probate of Marengo to show cause why the writ of ■mandamus should not issue as prayed for; unless being certified of our conclusions on the facts presented, he shall proceed to hear and determine the cause of the detention of the petitioner, or, unless he ma.y desire to make answer to the petition and controvert the same.

* Not found in official reports.