Ex parte Oliver , 127 Miss. 208 ( 1921 )

Ethridge, J.,

delivered the opinion of the court.

James Oliver was arrested in the state of Tennessee by the sheriff of Panola county, Miss., without having obtained a warrant in the state of Tennessee or résorting to extradition proceedings. Oliver was brought back into Mississippi without it being disclosed to him what charge was made against him until after he reached this state. The sheriff placed Oliver in jail instead of carrying him to the conservator of the peace to answer some crime charged, and on the 8th day of June, Oliver sued out a writ of habeas corpus before the circuit judge, alleging that he was unlawfully detained by J. A. Carter, sheriff of Panola county in a jail at Batesville, Miss., on a charge, according to the sheriff, of robbing a bank at Como, Miss. That no legal proceedings have been instituted charging the petitioner Avith said offense, and that the only knowledge he has of the matter is that he has been informed by the sheriff that he is held for the robbery of said bank. He alleged that he Avas not guilty of the charge or any part thereof, but was deprived of his liberty unlawfully and Avas entitled to be discharged. This petition was sworn to and filed on the 8th day of June, 1921, and a writ Avas directed to be issued returnable before the judge at Sardis on the 16th day of June, 1921. The sheriff answered that he had the relator in custody under authority of a mittimus executed by one J. L. Burgin, justice of the peace of district No. 1, Panola county, a copy being filed with the ansAver, and that Oliver failed to make and execute bond as required of him by said order and mittimus, said mittimus having been issued by said justice of the peace previous to judgment and affidavit charging' burglary, and a copy of the affidavit and judgment being filed with the answer. The mittimus filed is dated June 15, 1921, and on the same day an order was made by the justice of the peace requiring the defendant or relator to furnish bond in the sum of twenty thousand dollars, and that he stand committed until such bond be made. The affidavit filed in the record is dated on the 13th day of May, 1921, and on the same day a writ was issued by the justice of the peace, commanding- the sheriff to take Oliver into custody and bring him before the justice of the peace to answer the state on a charge of burglary and grand larceny.. There is no return in the record on this warrant. The affidavit alleges the offense to have occurred on the 7th day of May, and the sum alleged to have been taken was five hundred dollars. When the writ was returned on the 16th day of June the district attorney appeared and moved the court to dismiss the petition on the ground that said Oliver was arrested on the charge of burglary and larceny, and that the justice of the peace had, and still has, full and complete jurisdiction over the merits of the case, upon which the defendant was arrested, and that at the filing of the petition the said charge was then pending in the court of the said justice of the peace, and that he at all times was ready -for a trial of said cause; second, that the justice of the peace having sole and exclusive jurisdiction of said cause set the cause for hearing on the 15th day of June, 1921, and that the defendant waived hearing, and that judgment was entered, requiring him to give bond in the sum of twenty thousand dollars; and, third, that the habeas corpus court had no jurisdiction under the petition as filed to pass upon matters set out therein.

The co'urt sustained the motion to dismiss but announced that if the relator so desired he could amend his petition so as to show the bond required was excessive, but refused to hear the relator on the merits or to hear evidence as to the guilt or innocence of the charge. The relator excepted, and thereafter amended his petition so as to charge that tbe bond required by tbe justice of tbe peace was excessive. On tbe bearing of this part of tbe case tbe relator testified that be bad property or interest in property in tbe state of Tennessee amounting to three thousand, five hundred dollars in value, and that he could not give bond in excess of that amount. That be bad no property in Mississippi, and no one to make his bond. Tbe sheriff and deputy sheriff testified that, while be could not make bond in Mississippi, in their opinion be could put up a cash bond because of his connection with certain parties in Memphis, Tenn.

It appears that some party in Memphis, Tenn., bad signed the bond, and thereafter scratched his name therefrom without delivering the bond, and refused to make it. Nothing appears to show that the appellant himself has sufficient cash money to make the bond required, nor does it appear what relation he bore to the parties in Tennessee, nor that they would make the bond or that they were under any obligation to the relator so to do. The deputy sheriff states that the relator received a check for eight hundred and eighty-three dollars from one Nolen in Tennessee, and that this check was for his attorney appearing in the case. One Waggner testified that Nolen owned seven drug stores, and that he had signed the bond for one man named Chambers, but struck his name off the bond, and that Chambers made a ten thousand dollar cash bond, and he stated that the relator could make the bond required of him through Nolen and others. The court refused to reduce the bond fixed by the justice of the peace, and ordered that the bond be fixed at the sum of twenty thousand dollars, and that the relator be remanded to jail until said bond was made, and ordered that the relator be removed to Tallahatchie county jail at Charleston, Miss. No proof was taken in open court nor any reason stated in the order for removing the relator to Tallahatchie county.

We think the court was in error in refusing to hear the relator on the merits of the charge. There had been no indictment found against the relator by the grand jury and the jurisdiction of the justice of the peace extended only to determining whether there was proper cause for an indictment or proper evidence of guilt. The judgment of the justice of the peace was not conclusive upon this point. I-Ie had no jurisdiction to try the case upon its merits so as to convict or discharge, and the relator could not be tried for a crime until the grand jury indicted him. The habeas corpus court had a right to inquire into the guilt or the innocence of the relator for the purpose of determining whether there was sufficient evidence to warrant his detention, and he had the power to discharge the prisoner if the evidence was insufficient, provided no indictment had been returned by the grand jury. He was not bound by the judgment of the justice of the peace.

On the second point we think the court was also in error for the reason that a twenty housand dollar bond under the facts of this record was clearly excessive. The evidence of the relator Avas that his ability to give bond was limited to three thousand, five hundred dollars. The evidence of the sheriff was based upon opinion, and there is nothing in the bill of exceptions that convinces us that Nolen or any other parties would put up twenty thousand dollar bond for the relator. While the habeas corpus court is not limited in its action to the testimony of the relator on his ability, still there must be something in the nature of substantive evidence, apart from mere opinion, that the party could make the bond required of him. A bond must be reasonable. The condition of the relator to give bond, the nature and character of the offense charged, and the maximum punishment to be inflicted on a conviction are all to he taken into consideration in determining the amount of bond. The public policy of thé state favors bail, and under modern conditions criminals can be located and returned for trial much more easily and efficaciously than in former years.

The judgment will be reversed, and the .cause remanded to be heard before the circuit judge at such reasonable time as he may fix. So ordered.

Reversed and remanded.