
    The State v. Vaughan, et al.
    
    
      Petition for Habeas Corpus.
    
    1. Preliminary hearing; no ground for plea of former conviction or acquittal. — No plea of former conviction or acquittal, or former jeopardy can he predicated on a preliminary hearing or its results.
    2. Same; any number may be held in same case. — There is no statutory limitation upon the number of times a person may be charged with a given crime, arrested and brought before a magistrate for preliminary investigation, and discharged, held to hail or committed without bail; and if a defendant on preliminary examination is discharged, committed without bail or admitted to bail, he may be again required by another magistrate to undergo preliminary examination for the same • offence, and the former examination is no bar to the second-proceeding.
    Appeal from the City Court of Selma.
    Tried before the Hon. John W. Mabry.
    Claud M. Vaughan and Roy Vaughan were arrested and had preliminary trial before a justice of the peace on the charge of murder. They were bound over to answer indictment in the circuit court, but were allowed hail. Afterwards and while they were at large on hail bond, complaint was made before another justice of the peace, charging them with the sam.e offence for which they were under bond. Warrants of arrest were issued by this second justice and the defendants were required, against their protest, to undergo another preliminary examination. The second justice bound them over without hail and they were committed to jail. They sued out this writ of habeas corpus before the judge of the City Court of Selma, by whom the order of the second justice was annulled and the defendants remanded to the custody of their bail — the second preliminary examination being held to be void. The State appealed.
    Chas. G-. Brown, Attorney General, and W. W. Quarles and Craig & Craig, for the State.
    Mallory, McLeod & Mallory, and Pitts & Pitts, contra,
    
    contended that as the committing magistrate had no authority to re-arrest a defendant whom he had committed, no other magistrate had such right. And that the defendant being in the custody of his bail who were responsible for his appearance at court, he could not be taken from them by re-arrest for the same offense, citing the following authorities — State v. Crosby, 114 Ala. 13; Ex parte Robinson, 108 Ala. 164; Cain v. State, 55 Ala. 173.
   MoCLELLAN, C. J.

— We do not think an extended discussion of this case is necessary. We are of opinion that' the point involved here is determinable against the petitioners for the writ of habeas corpus upon what is said in the case of Ex parte Robinson, 108 Ala. 161. It may be that what is there declared bearing upon the precise question presented here was not necessary to the decision of that case, and hence was in a sense dictum; but whether necessary to that case or not it is necessary to this, and as we are fully impressed with the soundness of the principle as there expounded, we adopt that exposition as the law of this case. It is there said, as has been several times directly adjudged by this court, that no plea of former conviction, or former acquittal, or former jeopardy can be predicated upon a preliminary hearing or its result. It is there noted that there is no statutory limitation upon the number of times a person may be charged with a given, .crime, arrested, brought before a magistrate for preliminary investigation and discharged, held to bail or committed without bail. And it is there further stated, as has been, expressly decided by this court, “that if the defendant be discharged upon preliminary investigation by the 'magistrate, he may be arrested on a second warrant.” With this unquestioned state of the law as a premise, the court then proceeds in that case to draw the inevitable conclusion therefrom that where a defendant has been admitted to bail on a preliminary hearing and has in fact entered into the bail required and been remitted to the custody of his bondsmen, he may Ije again proceeded against upon another, warrant for the same offense, subjected to another preliminary examination, and thereupon held without bail,- or admitted to bail in other amount, or discharged. Jus--tice Coleman, speaking for the court, said: “If this [that a defendant discharged on preliminary investigation may be arrested on a second warrant] be true, under this rule he is subject to as many arrests as there are magistrates in the county, at least until one is found who is willing to commit or .require bail. • But if. the order of the magistrate is final and conclusive on other magistrates, it is because of the jurisdiction to make a final order, and not because of the particular conclusion reached by the justice of the peace. . The order would be equally final and binding whether the defendant be discharged or committed.. There is no answer to this proposition.. It would also conclude a warrant issued upon the finding of a coroner’s inquest, for this, merely secures a preliminary investigation.” And the converse of this proposition is necessarily true: If the order of one magistrate is not final and conclusive upon other magistrates it' is because no magistrate has the jurisdiction and power to make any final and conclusive order in the premises; and being without such jurisdiction an order admitting to bail is no more conclusivé than an order discharging the defendant. The want of finality and conclusiveness results from want of jurisdiction, and any possible order upon preliminary examination must be lacking in those qualities, since the magistrate can make no order possessing them. And this is precisely what is meant by Justice Coleman in Robin son’s Case. He refers to the well settled law that an order of discharge is not final and that a defendant is subject to as many arrests as there are magistrates in the county, “at least until one is found who is willing to commit or require bail/’ as a basis for the further conclusion that inasmuch as the doctrine so far as the exigencies of cases has required its exposition must rest upon the broad foundation of a want of jurisdiction to make a final and conclusive order, the doctrine itself must be applied to all orders on preliminary investigation since in respect to them all, whether of discharge, bail, or commitment without bail, there is equal want of jurisdiction to preclude subsequent proceedings on another warrant; and this is what is intended when he says that if the order of the magistrate is final and conclusive on other magistrates, it is because of the jurisdiction to make a final order, and not because of the particular conclusion reached by the justice of the peace; and hence the further necessary conclusion that final jurisdiction to make a paridmiar order having been expressly decided not to exist, there can be no jurisdictions to make any order which would bar and preclude a subsequent prosecution on another warrant for the same offense. And why is not the proposition entirely sound? What is there to stand in the way of such second proceeding against a defendant who has been admitted to bail? He has not been convicted; he has not been acquitted; he has not been put in jeopardy. There is no plea known to the law that can be interposed between him and a new investigation followed by a new and different order. There is no statute forbidding it expressly or by implication. Confessedly there is no element of contract to bar the State in any criminal prosecution. There is no question of vested rights. The only argument against the doctrine as applicable to a second prosecution where the defendant has been enlarged on bail is that it would be harassing and oppressive to him. . The effect being to relieve his bondsmen of responsibility it could be in. no sense onerous to them. And as to him it would be the same kind of burden that one who has been discharged is subjected to on a second and subsequent proceedings and which has been adjudged to furnish no ground for a different conclusion. Besides in both cases tbe defendant is protécted by tbe law from tbe abuse of process and has bis remedy for ill founded and repeated prosecutions for tbe same offense not actuated by proper motives. There is, we think, no merit in this argument ab incon-venienti, as was substantially declared in Robinson’s Case supra, nor in any other consideration to which onr attention has been directed; and our conclusion is that the city judge erred in granting the Avrit of habeas corpus. His order in that behalf is reA’ersed and set aside, and a judgment will be here entered denying the petition for the Avrit, and remanding the petitioners to the custody of the sheriff under the commitment without bail.

Beversed and rendered.  