
    Emanuel and Giles, Slaves, v. The State.
    1. Habeas corpus : judgment sustaining indictment cannot be inquired into except on writ op error. — The judgment of the Circuit Court sustaining the sufficiency of an indictment, constitutes the law of the case in all subsequent proceedings, until it has been reversed upon writ of error in this court; and hence, the correctness of such a judgment cannot be inquired into, or questioned upon the return of a writ of habeas corpus issued at the instance of the prisoner.
    2. Same : same : when prisoner entitled to discharge for insufficient indictment. — A prisoner will not be entitled to a discharge, if it appear, upon the return of the writ of habeas corpus, that an indictment has been preferred against him, which has been adjudged sufficient by the court in which it is pending; nor, where there has been no judgment affirming the validity of the indictment, will he be discharged on account of its insufficiency, unless the evidence on which it was found be adduced, and it appear therefrom, that he should not be held in custody in the matter.
    3. Slaves : not entitled to habeas corpus after indictment for a felony.— The Habeas Corpus Act provides that “ it shall not authorize the discharge out of prison of slaves after commitment of indictment for any felonyand hence, if upon a return of the writ it appear that an indictment has been preferred against the prisoner (a slave) for a felony, and that the indictment upon demurrer thereto has been adjudged good and valid, the writ must be dismissed.
    ERROR, to revise judgment pronounced by the Hon. William Cothran, judge of tenth judicial district, in vacation.
    
      Fisher and Armistead for plaintiffs in error.
    
      T. J. Wharton, attorney-general, contra.
   Handy, J.,

delivered the opinion of the court.

This case comes up by writ of error, to the decision of a circuit judge refusing to discharge the plaintiffs in error, who were brought before him hy writ of habeas corpus sued out by their owner.

It appears, by the record before ns, and hy the return of the officer to the writ of habeas corpus, that he held the slaves in custody hy virtue of an order of commitment, made by the Circuit Court of Tallahatchie county, at December term, 1858, to await their trial on a charge of advising and conspiring to make insurrection, for which they had been indicted, by the Grand Jury of Yallobuska county.

Upon the hearing of the writ, the evidence introduced was the record of the indictment referred to, and the proceedings thereupon in the Circuit Court, by which it appears that the indictment contained three counts; that a demurrer was filed to the whole indictment and sustained, as to the first two counts, but overruled as to the third; and in that condition that the indictment was pending in the Circuit Court. And thereupon the judge dismissed the writ of habeas corpus, and remanded the prisoners to custody, and that judgment is now sought to be reviewed in this court.

A preliminary objection is taken to the proceeding, on the part of the State, which we think disposes of the case as it is now before us.

It appears that the slaves were committed upon an indictment charging that “they did unlawfully, maliciously, and feloniously consult, advise, and conspire together, with other slaves, whose names are unknown, with intent to resist the lawful authority of one, John H. Mairs, who was then and there the overseer of all the slaves aforesaid, by arming themselves with divers clubs, sticks, axes, hatchets, scythe-blades, and rocks; and assembling themselves together for the purpose of resisting the aforesaid authority in said county, contrary to the statute, and against the peace and dignity of the State,” &c. .

The Habeas Corpus Act provides, that it “ shall not authorize the discharge out of prison” . . . “of slaves, after commitment or indictment for any felony.” Rev. Code, 365, Art. 3. And hence, it is insisted that the writ was improperly granted in this case, and should have been dismissed on that ground. On the contrary, it is said that the indictment charges no offence for which these slaves were punishable by indictment, and hence, that the indictment must be regarded as a nullity.

It appears that, on demurrer, the indictment had been adjudged good and sufficient by the court in which it is pending, and that the case stood upon that judgment in that court, when the writ of habeas corpus was sued out. Until that judgment was set aside or reversed, it was the law of the case ; and it was not competent to call it in question upon the writ of habeas corpus, and upon an adverse decision being made thereupon, to bring the question to this court, by writ of error to that judgment. For that would be virtually to make the writ of habeas corpus a writ of error to the judgment of the Circuit Court, and call upon the judge to reverse the judgment upon the demurrer, and declare the indictment, then duly pending in the Circuit Court, insufficient. So the court, upon writ of error to the judgment on the habeas corpus, is required virtually to reverse the judgment on the demurrer, when that judgment is not before us. All this is manifestly irregular, and not to be tolerated. The judgment of the Circuit Court holding the indictment sufficient in law, must be taken as correct, until it be reversed; and that can only be done by this court, when it shall be brought before us by writ of error.

The evil consequences arising from the course of proceeding, in resorting to the writ of habeas corpus in cases like this, are most obvious.

1st. The judgment of the Circuit Court upon the demurrer, if the writ be sustained, would be reversed without writ of error extending to it. In law it remains in force. What, then, is to be the course of proceeding of the court upon the indictment ? It would be to proceed with the cause, treating the indictment as sufficient under the judgment previously pronounced. But the court would find that the prisoners had been taken from the custody of the law, and were not in the power of the court, having been discharged from prison under the writ of habeas corpus. Such a state of case would present a great anomaly.

2d. But to determine the indictment to be insufficient, and to discharge the prisoners on habeas corpus, on' that ground, and without hearing the evidence upon which the charge was founded, would be attended with another serious mischief.

In such a case, the only question presented would, be the sufficiency of the indictment. It might be that the indictment in its form is insufficient, and on that ground that it would be liable to be quashed; and yet there might be sufficient cause upon the facts of the ease to keep the prisoners in custody, to be proceeded against upon another indictment, which might be properly framed to meet the offence of which the prisoners were really guilty. And yet, in such a case, and as this case is here presented, the prisoners would be discharged, and might be placed beyond the reach of punishment, simply because the indictment was not technically sufficient to charge them with the offence intended to be charged. If such a course be justifiable upon sound principle, not only the sufficiency of all indictments for capital offences, but the correctness of the decisions of the courts where they are pending, adjudging them to be sufficient, are subject to the determination of a judge at chambers, with power to overrule, in this informal mode of proceeding, the judgment of the proper court duly pronounced; and the same principle would give to a judge sitting on habeas corpus, the power to annul the judgment of the Circuit Court upon final conviction, and this on the ground that the indictment was insufficient, in charging no offence.

It is clear that such questions were not intended to be embraced and determined in the proceeding of habeas corpus.

We are therefore of opinion, that when there has been an indictment which has been held by the proper court to be good, and which judgment stands in full force, or when the prisoner, without such judgment, claims his discharge on habeas corpus, merely on the ground of the insufficiency of the indictment, without the ad-duction of the evidence on which the indictment is founded, showing that he should not be held in custody in the matter; in either of such cases, the writ of habeas corpus should not be entertained.

It follows from this view, that the writ of habeas corpus was properly dismissed, and the judgment is affirmed.  