
    Ex Parte CAMPBELL.
    1. Where a prisoner moves the Circuit Court for bail, and the court proceeds to examine fully the facts and circumstances attending the commission of the alleged offence, it is not error to refuse to permit the prisoner, after having submitted all the evidence, to -withdraw his motion, since the State, as -well as the prisoner, is interested in it. It is the duty of the court to proceed -with the case, and either bail the prisoner, and thereby rid the State of the expense of his custody, or remaud him, as the facts may require.
    2. When an application for habeas corpus is made, to obtain the petitioner’s discharge on bail, on account of a continuance of his ease by the State upon the unsworn statement of the prosecutor, if the statement is reduced to writing and sworn to at the time the application it is made, is an answer to the application, and justifies the court in refusing the writ.
    3. Where the record of the court shows that the facts and circumstances, attending the commission of the offence with which a prisoner is charged, have been fully inquired into, on an application by the prisoner for bail, the court, although not bound to bound to do so, may well decline to hear another application based on the same facts.
    
      4. Although the writ of habeas corpus is a writ of right, yet the courts will not grant it, unless the party applying for it shows such a state of facts as entitles him to relief.
    5. Notwithstanding a judgment refusing a discharge, upon an application for bail, does not conclude the party from again applyiug, yet it is within the sound discretion of the court, after having fully examined the facts and circumstances on the previous application, whether it will retry them upon a renewed application, or repose upon its former judgment; and this discretion will not be controlled by mandamus.
    
    A. J. Walker, an attorney of tbis court, submitted a motion in bebalf of James H. Campbell, accompanied by tbe record of tbe proceedings bad in tbe Circuit Court of Cherokee county, for a writ of habeas corpus, for tbe purpose of obtaining bail for tbe prisoner, who is confined, as tbe record discloses, upon a charge of tbe murder of one Martha Garett.
    It appears that after tbe indictment was found, and tbe prisoner bad been arrested, and was present in court, tbe solicit- or continued tbe cause upon tbe unsworn statement of tbe prosecutor, which was received by tbe court, tbe prisoner making no objection to thus receiving it. (It was, however, consented by tbe solicitors engaged in tbe cause in tbis court, that tbe statement might be considered as taken in writing, and sworn to by thé prosecutor.)
    
      Tbe prisoner then moved for bail, and thereupon the court proceeded to examine the witnesses on the part of the State, as well as those on behalf of the defendant, touching the guilt or innocence of the said defendant; and after hearing all the evidence on both sides, and after due consideration, it was adjudged by the court that the defendant was not entitled to bail. It appears that after all the evidence had been submitted-to the Circuit Judge, and he had adjourned for the day, before the court convened the next morning the judge had announced to the counsel for the prisoner his opinion, that the facts of the case did not entitle the prisoner to bail. The counsel, as soon as the minutes were read next morning, and before the judge had delivered his opinion in the cause, moved to withdraw his motion, which being opposed by the solicitor on the part of the State, the judge refused leave to withdraw, and went on to deny the bail.
    On the last day of the term of the court, the prisoner renewed his application for bail, as matter of right, upon the ground that the State had continued the cause upon the un-sworn statement of the prosecutor. This motion was also overruled by the court.
    At the next term of the court, the prisoner renewed his motion for bail, and desired the court to re-examine the facts and circumstances of his case, so as to determine whether they did not entitle him to this privilege; but refused to say that he expected to offer any other testimony, than that which had been previously passed upon by the court. The court, thereupon, declined to hear this motion.
    It was consented between Mr. Walker, on behalf of the prisoner, and the Attorney General, that a motion for a mandamus, to require the judge to hear the application last refused, should be considered as made, and both motions were argued together, by consent.
    Mr. Walkee, for the prisoner.
    1. There being no other legal remedy, mandamus is the appropriate one. As far as the refusal of the presiding judge at the fall term, 1851, to hear the application for a discharge upon bail, is concerned, a petition to this court for a habeas corpus is not the proper remedy, because it is necessary to show in the petition for habeas corpus, that the accused was entitled by the case made before the inferior tribunal, to the relief which he sought. This could not be done, because the court refused to permit any case to be made before it, and in effect repudiated all jurisdiction over it.' — Croom & May, ex parte, 19 Ala. Rep. 561; 17 ib. 530; 13 ib. 320; 13 ib. 805.
    2. The calling upon the counsel to state whether they expected to make proof, additional to that adduced on the former application, is totally indefensible. The jurisdiction of a court can not be made to rest upon the basis of a verbal declaration at the bar, that additional proof will, or will not be adduced. To make the right of an accused individual to an examination into the “ facts and circumstances ” of his case, with a view to his discharge on bail, depend upon such declarations, imposes upon the judge the duty of determining, without hearing it, the weight and credibility of proof, and of guessing whether it will or will not be contradicted.
    3. The decision of the prior court at spring term, 1851, that the case of the accused was not bailable, was not conclusive upon, and did not estop the subsequent court. — 8 Ala. Rep. 424; 6 John. 426-7; 2 Southard, 555; 2 Yeates, 539.
    4. If the decision of a court refusing to discharge upon bail be a conclusive judgment, precluding the jurisdiction of other courts upon the same question, it follows that any other adjudication on the subject of bail must be equally conclusive, and it would be incompetent for a subsequent court to. increase or reduce the amount of a recognizance or bail bond, or to decide that the securities received by the former court were insufficient, and that the accused should give additional security.
    5. If the decision of the first judge were not conclusive of the rights of the accused, the judge last acting on the subject could not make that decision the exclusive basis of his determination. The doing so substitutes the judgment of another for that of the person whom the law calls upon to decide. If the decision of the first judge be entitled to consideration, because the application for bail is addressed to the discretionary power of the court, then that decison should be regarded in connection with the evidence, as a persuasive argument; but if the discretion of the judge is controlled alone by the former decision, it makes tbe liberty of tbe accused depend upon a guess, and not upon discretion.
    6. Every person bas tbe right to apply for habeas corpus, and it is tbe duty of tbe officer to whom application is made, to issue it; and it is also tbe duty of tbe officer before whom tbe. writ is returned, to inquire into tbe facts and circumstances of tbe case. — Clay’s Dig. 462, § 4; ib. 469, § 40.
    7. If a decision refusing to discharge upon bail be conclusive,' — a decision discharging upon habeas corpus must be conclusive. Tbe legislature did not regard a discharge upon habeas corpus as conclusive, as is shown by tbe enactment of a law guarding against tbe re-imprisonment of one discharged on habeas corpus, except in a certain contingency. It could not have been tbe intention of tbe legislature to make a decision against tbe accused conclusive, when they did not regard a decision in bis favor as conclusive. — Olay’s Dig. 469, §41.
    8. Campbell bad a right 'to withdraw bis application for discharge upon bail, at any time before tbe decision was announced, and tbe court could not deprive him of that right. Tbe application put tbe jurisdiction of the court in motion, and tbe application being withdrawn, tbe jurisdiction must cease. Tbe knowledge of tbe judge, acquired out of tbe court bouse, extra judicially, could not be made tbe basis of judicial action by which tbe rights of the accused were materially affected. Tbe only medium through which a court can ascertain tbe facts is sworn testimony, and no judicial action can be predicated upon tbe knowledge of a fact, which tbe individual happening to preside as a judge may have.— 9 Watts & S. 153 ; 8 B. Monroe, 285; 8 ib. 225.
    9. It was not tbe design of tbe legislature to admit tbe making tbe affidavit accounting for tbe absence of tbe witness, whose non-attendance causes tbe State to continue, to be made after the continuance. Tbe effect of construing the statute, as is done in ex parte Chaney, supra, is to substitute tbe judgment of tbe officer, before whom tbe habeas corpus is returned, for tbe judgment of tbe court continuing tbe cause. Tbe accused is entitled to have tbe affidavit passed upon by tbe court which continues tbe cause, and it is indefensible that tbe question, whether tbe affidavit accounts satisfactorily for tbe absence of the witness, should be referred to another. One design of the statute was, to protect the accused from improper continuances on the part of the State, and when it is decided that the affidavit may be made after the continuance, the statute ceases to affbr 1 that protection, and only guards the liberty of the citizen.
    M. A. BALDWIN, Attorney General; with whom was,
    L. E. PARSONS, contra:
    
   Pet' curiam.

We are of opinion that the Circuit Judge might well refuse leave to withdraw the motion for bail, having fully examined all the facts and circumstances of the case. It was a question in which the State, as well as the prisoner, was interested, and although the inquiry was begun upon the application of the prisoner, the State was in effect the plaintiff party, and it was the duty of the judge, having fully examined into all the facts and circumstances of the case, to proceed and admit the prisoner to bail, thus ridding the State of the expense of his custody, or remand him to prison, denying bail, as the facts and circumstances required.

We are further of opinion that both these motions must be denied. The first, which is for a habeas corpus, upon the ground that the affidavit upon which the continuance was granted, has been supplied by the argreement of counsel, and this, under the previous decision of this court in ex parte Chaney, 8 Ala. Rep. 424, deprives the prisoner of the right to bail, growing out of a continuance for want of such written affidavit. The second motion, which is for a mandamus, cannot be allowed; because the court, having previously examined fully into all the facts and circumstances of the case, was not bound to re-investigate the facts and circumstances, but might well repose on its previous decision made upon such full investigation. We will not say, the former adjudication was conclusive upon the party’s right to bail, as arising out of the facts. On the contrary, we think it was not, and that it would have been competent for the court, even upon the same facts, to have admitted to bail, if he had been satisfied that the former conclusion attained upon the evidence was erroneous. But he was not compelled to re-try the facts, as often as the prisoner chose to renew his application. It was, at most, a matter of sound discretion, and we think this record shows that he exercised it properly. The case of ex parte Lawrence (5 Binney’s Rep. 304) holds, that the court is not even bound to grant a habeas corpus, where the case has already been heard upon the same evidence by another court. It is, however, added, that they do not wish to be understood as saying the court had not the power to issue the writ, if it had thought it expedient to do so. The case before us does not require us to go the length of that case; for here, the motions for bail were made in the same court, and the records of that court showed that the merits of the application sought to be renewed had been fully determined upon, and no reason was shown why it should be renewed. In applications for writs of habeas corpus, if the prisoner or petitioner make out a case which entitles him to his discharge, then the writ is matter of right; but if he shows, by the case which he makes in his application for the writ, that he is not entitled to relief, the writ will be denied; for it were useless to go through the ceremony of granting the writ, and having the party brought before the court, merely to be remanded back to the custody out of which he prays a discharge. See on this point, ex parte Croom and May, 19 Ala. 561. In this case, the record accompanying the applications shows that they should be denied.

Motions denied.  