Ex Parte State

The main question presented by this petition and the return made by the respondent to the alternative writ is whether or not, under sections 6331-6335 of the Code of 1907, a probate judge is authorized to hear applications for bail by a prisoner under indictment for a capital offense.

In the recent case of Ex parte State of Alabama ex rel. Attorney General, 85 So. 707¹ (which was the petition for prohibition referred to in the reporter's statement above), it was held that the procedure provided by sections 6331-6335 of the Code of 1907 —

"is not intended for cases in which the prisoner is indicted for a capital felony, but that the right to bail in such cases is to be determined on habeas corpus, on the hearing of which the state and the accused are entitled as of right to have the witnesses heard."

We have again considered the question in full bench, and a majority of the court, consisting of ANDERSON, C. J., and SAYRE, GARDNER, and BROWN, JJ., are of the opinion that the respondent, as probate judge of Morgan county, was without authority to act in this case, and they adhere to their previous conclusion as stated by SAYRE, J., in the case above referred to.

It appears from the respondent's answer that the circuit solicitor consented to the hearing in question. However, it is an elementary principle of law that jurisdiction of the subject-matter cannot be created by consent, and the solicitor's consent cannot be considered here. It results that the mandatory writ must issue to the respondent, commanding him to set aside and annul the order admitting the prisoner to bail.

The writer and THOMAS, J., are of the opinion that, while the first clause of section 6331 very obviously relates to fixing bail in cases only which are bailable as a matter of law, the latter clause, authorizing an application for bail to any judge or chancellor in vacation, is not limited to such cases, but relates to all cases, whether of indictment or otherwise, in which the prisoner is entitled to bail, either as a matter of law or of fact. They are impelled to this conclusion in view of the language of section 6335, which allows appeals from orders refusing application for bail, meaning, ex vi termini, refusals in refusable cases, viz. in capital cases where the right to bail vel non depends on the weight of the evidence.

They would conclude, therefore, that the respondent was authorized by law to hear the application of the prisoner Namie for bail, and to admit him to bail if the evidence justified such an order.

Writ granted.

ANDERSON, C. J., and SAYRE, GARDNER, and BROWN, JJ., concur.

SOMERVILLE and THOMAS, JJ., dissent.

¹ 204 Ala. 288.