The Birmingham age-herald. [volume] (Birmingham, Ala.) 1902-1950, 1906-08-17
Judge Weaver Passes Matter
Until November 10
WANTS THE ISSUE SETTLED
Counsel for Defense Files Long Brief
Applying for Alternative Writ
of Prohibition or Rule
NIsl.

The John Williams case which came
up yesterday before Judge S. L. Weaver
was passed to November 10, when the
question of jurisdiction will be decided
by the supreme court of Alabama.
In the meantime the Cullman county
| farmer who was convicted of numbering
| State Senator r. L. Hipp, and whose ex-
eeution set for July 81 was stayed by a
writ Of habeas corpus on the ground of
insanity, will remain in the jefferson
county Jail
The case was passed yesterday as re-
suit of the order issued by Chief Justice
Weakley stopping proceedings on August
6 when there was to have been a hearing
before Judge Weaver as to Williams in
sanity, until both sides could at the end
of ten days file briefs on the matter as to
whether or not a chief justice had the
authority during the vacation of the SUI
preme court to issue the writ of prohibi-
ton as was sought in the petition filed
by Attorney General Wilson.
Both briefs were filed yesterday In
the brief filed by the attorneys for the
/ htitASc IL was tOHGtutu lHdl llt Will VI
prohibition may be issued but that the
rule must be returnable to the next term
of court.
Judge Weaver said that justice Of the
supreme court had the right to pass on
the petition for rule nisi and that as he
had received no further notice in the mat
ter he would pass the case to Novem-
Der 10.
| The prisoner was not in the court room,
but his son, Frank Williams, was present
with his attorneys, Erie Pettus. F. E. St.
John and zell CASTOR. The attorneys for
the state were absent
Below is the brief which was filed with
Chief Justice Weakley by the attorneys
for the defense
Brief Filled With Supreme Court.
BRIEF OF DEFENSE. SUPREME
COURT OF ALABAMA.
Ex-parte the State. Elk Rel. the Attor-
ney General-Applieatio to the Honor
able Chief Justice of said Court for an
Alternative Writ of Prohibition. or Rule
Nisi-Brief and Argument of Counsel for
Petitioner in Court Below:
This is an application in the name Of
the state on tae relation of the attorney
general for an alternative writ Of prohi-
btion, or rule nsi 20 be directed 10 the
Hon. S. L. Wea, Ct, Judge, restraining
the said judge from entertaining or pro-
ceedings further with a certain petition
for habeas corpus file before him by
Frank Williams in behalf of John vii
/ liams
The application for the said rule nisi
is addressed to the honorable Chief JUS
tice of the Supreme Court of Alabama in
vacation.
The supreme &c ur. of this state is au-
thorized to issue original writs Of prohi-
bition.
Constitution, .;O1. section 14o.
% American end English Encyclopedia
Law. second edition. &c.
b. E. Co. vs.. B. 7. Co., 121, Alabama,
479.
@. E. Co. VS.. B. r. Co. rs So. III.
If Justice of the supreme court could
not issue an alternative writ, or rule TO
show cause, in vacation the ppwor of
the supreme court IN his regard would
be nugatory.
The very necessity Of the law requires
that any justice of the supreme court
during vacation, in a proper case and on
a proper showing, be authorized To issue
an alternative writ of prohibition, or rue
nisi. returnable to the next term of the
court.
We therefore, concede that the prelim-
mary writ of prohibition may be issued
In vacation on proper application to one
of the Justices of the supreme court, but
the rule must be made returnable to the
next term of the court.
16 Ency. p 81 p. 1140.
10 Ency. Law. first edition, PSI.
The latter citation contains lucid
statement of the principle. See also;
Elk parte Ray, 40 Ala, 10.
Fly narte Keeling 80 Ala. 44.
Eek parte Booth, "a Ala, 3lS.
We concede, also, that prohibition will
lie to prohibit judicial officer not having
jurisdiction from entertaining habeas cor
pus.
Eek parte Ray. 40 Ala. 10
Thus far we so with the state;
That any justice of the supreme court
ON proper application and showing in va
cation, is authorized under the law to is
sue an alternative writ of prohibition. OF
rule nisi, returnable to the next term OF
the court.
That prohibition is the proper remedy
to prohibit a judicial officer not having
jurisdiction from entertaining habeas cor.
pus.
But we emphatically deny that the state
is entitled In this case on the showing
made to the rule nisi or alternative writ
of prohibition.
| In entertaining the Will VI ht1pVNS vi
pus in behalf of John Williams, the Hon
S. l.. Weaver has not exceeded his juris-
diction.
As associate judge of the criminal court
of Jefferson county, Alabama, the said
Hon s. L. Weaver has concurrent juris-
diction and powers with a circuit judge
of this state.
(see act creating said criminal court)
When a person is confined under an or
der of Judgment of the supreme court oil
the circuit court the petition for habeas
corpus must be addressed to the nearest
circuit Judge or chancellor.
Code section ASH
The locus of the body fixes jurisdic-
ton under the statute.
If the petitioner is entitled to habeas
| corpus his application must be addressed
to the nearest circuit Judge or chancellor
that Is, to the official authorized to is
sue the writ who happens to be nearest
the place where the body is confined.
This Is too plain to need argument, an6
the purpose of this wise provision of this
law is apparent.
Current Law, 15iS.
If must be admitted then, that L
Frank Williams was entitled to writ
of habeas corpus in behalf of John Will
liams. the Hon. S. L. Weaver was g
nroper official to whom to address the
petitionh for the prisoner was and is con
fined in the county Jail OF Jefferson coun
ty under an order of Judgment of tht
circuit court and the Hon. S. l.. Weaver
stands In the place of a circuit judge
of Jefferson county,
WAS THE PETITIONER ENTITLED TC