The Montgomery advertiser., 1904-01-24
|SAFEBLOW REMAIN RI; HERE Petition Denied by Judge
 Winter. ACCUSED WERE IN COURT Driscoll and Russell Sent Back to Jail. Lengthy Opinion in Which Effort to Return Prisoners to Custody of sheriff of Mobile ,i
 is Reviewed. =

Albert Driscoll and. J. E. Russell, ac- cused of blowing open the safe of tHirsch- CT Brothers on the night of December 9 will remain in the Montgomery County Jail until they are tried fer. that 'offense.
 Hon. John G. Winter, judge presiding over the Circuit Court Of Montgomery County, yesterday denied the petition for writ of habeas corpus of Driscoll and Russell and sent them back to. jail.
 The decision of Judge Winter was hand cd down yesterday forenoon in the Cir cult Court room with; none present; with the exception of court onicials and the tvro ,,efitioners .' 5--eT V r. .,e:
 Driscoir and Russell were handeuffed together and received the decision with the equanimity of countehances which has characterized their every appearance in Moptgomery. -: iS
 After conversing in an undertone; with their counsel, the alleged safe blowers were carried back to jaii' by a deputy sheriff, The whole, proceedings did not occupy. half hour '.. ..
 Later in the day Judge Winter handed down a lengthy opinion in which the case and its law and attendant. circum- stances are fully set out
 The opinion is as follows: .,..-
 Judge Winters Decision.
 Ex,Parte Albert Driscoll and Edward
 Russell, . 1...~.. ... .,:
 Albert Driseoll and Edward Russell each stie" out writ of habeas corpus the purpose being to be reniandedaor returned to 'the~ Vinegar Bend Lumber Company, the lessee of convicts of Mobile County.
 It appears from the petitions, each being the same, that on the sthf day of Decem- Der, 1S0e, they. were arrested ~in the city of Mobile on charges against each 'respec- lively, of conveying concealed pistol, and with having in their (his) posses sion instruments designed and intended to aid in the commission of burglary or lar ceny (both misdemeanors). That on the 1Tth day of December. 1908, they were duly arraigned on said charges in the Re- corder's Court of said city. and that the Recorder only having preliminary juris- diction, each defendant waived examina- ton and in default of bail prescribed, were committed to the Mobile County jail | to await the action of the, Grand Jury at the February term of the City Court | of Mobile. That on the 22pd day of De- cember, 1908, they. each elected to per- ! form. hard labor for the county of Mobile pending the action of said Grand Jury under. Section 5239 of the Code and the Acts amepnatory thereto. That they were accordingly turned over to the President of, the Board of Revenue Commissioners of Mobile County, and were, thereupon placed in the possession of the lessees of the Convict Labor of said Mobile County, to wit: The Vinegar Bend Lumber Com | pany in Washington County, Alabama, | and that while in possession of said com pany and on to wit: the 18th day of De- cember, 1903. they were taken from the | possession of said Convict LeSsees by the | sheriff of Montgomery County under an order signed by Dr. Shirley Bragg, who was acting President of the Board of Convict Inspectors in the absence of Judge J. M. Carmichael. President of said Board. and brought to Montgomery Coun- ty and incarcerated in the county jail, where petitioners are now confined. That at the time petitioners. waived prelimi- nary hearing in Mobile. there were war rants in the hands of the sheriff of Montgomery County for the arrest of pe- titioners under charges preferred for burglary. And that the charges preferred in Mobile County have not been investi- gated by the Grand Jury. That since the suing out of this writ, a preliminary trial on the Montgomery County charges have been had. and petitioners bound over to the Grand Jury to answer the same, and in default of bail stand committed to the ] county Jail of said county, and under said
 
 of said County. of Montgomery.
 | Under the above facts the petitioners respectively pray not for their release, but to be returned to the Vinegar Bend Lum- l Der Company.
 Prior Jurisdiction.
 | The doctrine of prior Jurisdiction is in- voked in aid of the petition, or, in other words, 1t is insisted that the court hav- ing first acquired Jurisdiction cannot be interferred with For two good and suf- ficient reasons this contention must fail The admitted facts show, that warrants were first issued on the charges made 1 In Montgomery County This Is at least the inference from the petition and the facts admitted. Nor can this doctrine, it seems to me, have application here. It 1 iS true That where two courts have con- current. Jurisdiction, that which first takes cogniZance of a cause. has right to re- tain 1t to the exclusion of the other" And 1t is also true that where court has Jurisdiction, of a case no other court of the State. of- inferior or concurrent Jurisdiction should interfere by habeas corpus" What is Jurisdiction. of the case or "cause?" It necessarily means Jurisdiction of the same case or "cause' both as to the parties and the subject matter. CWhen property rights, however. are involved. the legal custody of the property may not often times be dis turbed by proceedings in another form. ) Here we have the same parties. but the subject matter, the offense charEed, is entirely different, and ip no wise con- neeted the one with the other Had peti- tioners been indicted in two different courts ot concurrent jurisdiction for the same offense the court first acquiring jurisdiction should retain 1t: It Is also insisted that as petitioners had elected 10 perform hard labor for Mobile County, oy this election they became immune from arrest for all offsnses committed prior thereto fail to see what rights of the peuuoners are involved to support this contention. The law under which, they 'ecteo' was passed Ina spirit of human ny 10 the accused and for the purpose ohly Of giving him the opportunity of working working out his time. or a part thereof, oetore sentence. rather than be held in II county Jail to await his trial. 1t Is neither lin the letter nor spirit of this law eo slVe detendant the rights to dictate Mnere ana when he shall first be tried where different offenses have haan nra- IeIreo m the sane State. though in differ eht Jufisdictions. It would be A. stretch
 n"th the letter and spirit of the law 'o holo that petitioners are -irnpune from all other prosecutions until their cases m Mobile County have been nnaIiv dis posed ef l am inclined to inc oniniou