Ex parte West

COLEMAN, J. The petition and record show that petitioner was regularly tried before a committing officer, for the offense of arson, and committed to jail in default of giving bail in the sum of four hundred dollars for his appearance to answer an indictment that might be preferred against him for such offense. Prom this imprisonment he sued out a writ of habeas corpus returnable before the Probate judge of Dale county. The sheriff made due return in accordance with the facts stated. All the witnesses who were examined before the committing magistrate, were present and sworn as witnesses at the hearing of the habeas corpus proceedings. Only two were examined by the petitioner, and the testimony of one of them, if believed, tended to prove an alibi. The petitioner then rested. The prosecutor demanded that the petitioner be required to examine the witnesses present in court, who were examined by the committing magistrate. The petitioner declined to introduce further testimony, and the prosecution declined to introduce testimony. The petitioner then moved for his discharge, which motion was denied, hence the present application to this court. In the case of Ex parte Champion, 52 Ala. 311, it is said: “After a prior investigation by an officer authorized by law to make it, the prisoner ought not to be discharged without [67] all the witnesses that had been previously examined against him, if still living and attainable, being produced and examined. In the absence of any material Avitness who previously testified against him, the question for consideration should relate only to the amount of bail, if the case be bailable.” This case Avas cited, without an express affirmance or dissent in the case of Ex parte Robinson, 86 Ala. 622. The case of Champion, 52 Ala. supra was one in which there Avas an application for a mandamus, to compel the judge to hear the evidence, and the question Avas properly decided. All that was said as to hoAv the investigation should be prosecuted and the duty of the judge to re-examine all the witnesses who were examined on the preliminary trial, was dictum. The return of the sheriff shoAved prima facie that the prisoner was in legal custody. The burden then devolves on the petitioner to overcome the legal presumption arising from a commitment regular in form by a lawful officer. When this has been accomplished by the prisoner, the State should introduce evidence to sustain the commitment.—Ex parte McGlawn, 75 Ala. 38; Ex parte Tate, 76 Ala. 482, 486; Code of 1886, § 4785, sub-div. 4. The return of the sheriff showed that the prisoner had been regularly committed in default of bail, and prima facie his restraint was legal. The jurisdiction of the committing court, was unquestionable, and the facts of the sheriff’s return, not assailed. Under the practice in this State, the prisoner had the right to go behind the return, and show if he could, either that no offense had been committed, or if committed, there was not probable cause for holding the petitioner in custody to answer the charge.—Sub-div. 4 § 4785 of the Code supra; Ex parte Riley, 94 Ala. 82. This burden rested upon petitioner. We are of opinion the judgment of - the court can be upheld upon other grounds, than the rule declared in 52 Ala. supra. The property burned was located about a quarter of a mile from where petitioner lived. The room occupied by him was not the same as that occupied by the witness. She testified that defendant and his wife sat in the room with her from dark until 1 o’clock at night, during which period the burning occurred. The trial judge had the witness before him, saw her manner of testifying, heard all her testimony, and we can not say that the trial judge erred in holding that her testimony had not overcome the presumption against the defendant.—Bonner v. State, 55 Ala. 242. Petition denied.