The Montgomery advertiser., 1904-01-24

the petitioners and not the Mobile author ities. For this reason, even if Dr. Rragt exceeded his authority in giving the or der sef removal, I cannot. under the facts see how or by what right they can com plain. ABut am -inclinsd to the opiiior (which. however, do not deem 1t neces' ary to decide) that Dr. BraEg. had the right to grant the order of removal fol the reason that when petitioners elected to perform hard labor pending their tfial
 the intent and spirit of the law when con. strnsd in pari materfa, made them for the time, subject to all the rules and rexpla. tons prescribed They were not, how ever. at hard labor under and by virtue or any sentence, nor were they perform ing involuntary servitude in Mobile Coun- ty, in scoptravention of the bill of rights. Section S, of Constitution. .,
 It is. said in argument submitted in be- halfSof petitioners, in answer to that of the State, by it's solicitor, wherein the common law writ of habeas corpus ad proseauendum is invoked: that "as mat ter of fact sour statutes cover the entire field, and illustrate the proposi- tieu' that there is no use in America for the antiqusted writ" This writ is de- fined toibe "a writ which issues when it is necessary to remove a prisoner in or der. to prosecute in the proper jurisdic- tion wherein the act was committed.
 While the writ was not resorted to-, be- cause may be, the statutes render it un- necessary, it. but demonstrates the com mon law right; to have a defendant re- moved from one county to another for trial. In the latter, even though held in the former on a prior charge. And, as conceded by counsel for petitioners. that the ,wTft,is only Used in cases where it is neeessary to remove a prisoner from one jurisdiction to another for the purpose of triait.. ~.
 Their Rights Not Invaded.
 The petitioners were brought to Mont gomery for the purpose of preliminary trial. If they should first be indicted and brought to trial in Mobile County, there. is. ample authority in the State ts have them removed for the purpose Of suchN trial, and in turn, they may De brought back to Montgomery County ito stand trial in the event true bills are found against them here. But this Is all a matter for the State authorities in which T. fail to see in what respect conflict of Jurisdiction arises or wherein the rights of petitioners are involved:
 As being persuasive against the conten- tion of petitioners, Section 6239 of the Code before amendment confined the righs to elect to perform hard labor pending trial to, defendants charged with misde- meanors. This Section by amendments (Acts l90i-2, p. 152) extended this right to feionies not punished capitally. By an amendatory act passed in 1903 (Acts lSos p. 239) the privilege was again confined to misdeTneanors. We here have presented the esinsistance, that because petitioners have elected in Mobile to perform hard labor, pending their trial for misdemea- nor charges, they cannot be confined in a county jail on charge of felony. By way of illustration, had tho petitioners been charged with capital felonies, can 1t be maintained that they would be immune from prosecution therefor, pending their voluntary, servitude on misdemeanor charges? The statement of the proposi- tion gives its own answer, yet the princi- pal is the same when applied to the ad- It1itted facts of this case. By no process of reasoning or construction, can 1t be held that legislative intention. as gathered from the law itself will support the proposition. Admitting for the sake of argument that these writs are properly sued out by petitioners,sI cannot see the use of indulging in speculation as to which court will be first ready to put petitioners on a final trial. They are here under valid papers; their detention is in violation of no right of petitioners, and not in my opinion. illegal. They must in accordange with these views be remanded to the custody of the sheriff of Mont gomery County. ahd as to each petitioner, 1t is so ordered. ,.
 E . Juo. G. Winter,
 .-. Judge.
 The case will be appealed to the su- preme Court.