
    The State v. Graham.
    
      Habeas Corpus Proceedings.
    
    1. Discharge of prisoner by discontinuance of prosecution. — Where one charged with the commission of a felony is imprisoned in a county jail under a mittimus issued hy a justice of the peace, and while he is still in custody a regular term of the circuit court is held and no indictment is preferred against him by the grand jury organized at that term, and no order is made by the court continuing the cause for investigation, and the court adjourns without taking any action whatever in such case, -there is a discontinuance of the prosecution, the mittimus becomes functus officio, and the prisoner is entitled tio- be discharged; and the fact that an order of continuance is shown to have been entered upon the docket kept by the grand jury, does not prevent the discontinuance of the prosecution.
    Appeal from judgment of Judge of Probate Court of Coffee County.
    Heard before the Hon. F. M. Rushing.
    The appeal in this ease was taken by the State of Alabama from ajudgment of the Probate Judge of Coffee County, discharging the appellee, Hardy Grar ham, under habeas corpus proceedings, the said proceedings being instituted by said Graham, asking for his discharge. The facts of the case are sufficiently stated in the opinion.
    Massey Wilson, Attorney-General, for the State.
    No counsel marked as appearing ‘for appellee
   TYSON, J.

Petitioner was imprisoned in tire county jail for a felony upon a mittimus issued by a justice of the peace on the 6th day of August, 1902, and in default of hail which was fixed by the justice in the sum of five hundred dollars, he has remained and is now in custody under that commitment. The Circuit Court convened in regular session at the fall term’ thereof and no indictment was preferred against him by the grand jury organized at that term. In Ex parte Stearnes, 104 Ala. 93, applying the principles which control in cases where tire defendant is enlarged on hail and no indictment is found by the grand jury at the term of the court to which he is bound by his undertaking to appear and no forfeiture taken and the.case not continued for further investigation, it ivas held that there was a discontinuance of the prosecution, the mittimus becomes functus officio, and the prisoner entitled to his discharge.

In this case an order of continuance is shown to have been entered upon the docket by the grand jury. No order is shown to have been entered by the court upon the minutes or elsewhere upon its records. So then, the question presented is whether the order of continuance made by the grand jury operated to prevent a discontinuance of the prosecution.

At common law the powers of a grand jury, in the investigation of an offense, were very limited. Indeed “the rule was to prepare indictments, send them before the grand jury, administer proper oaths to the witnesses in open court and send them before the grand jury, to he examined by them touching the truth or falsi tv of the charge preferred in said indictment.” Banks v. State, 78 Ala. 14. Their sole duty was to say whether the evidence adduced before them made out a sufficient case against the prisoner to warrant his being put upon his trial before the petit jury. And if a majority of them (amounting to twelve at least) found the evidence made a sufficient case, it was the duty of tlie foreman to indorse on the bill “A true hill” and sign his name to it. On the other hand, if a majority were of a different opinion, then the words “Not a true bill” were indorsed. — 1 Archibold Or. Pr. and PI. top pages 304-307. Clearly under this rule the grand jury had no authority to continue a case which had been submitted to them by the court for investigation by another grand jury.

While our statutes have enlarged the scope of the powers and duties of the grand jury, they have not conferred upon them the authority of continuing cases so as to prevent a discontinuance of the prosecution. Such an order to have that effect and operation must be made by the court.-— Rogers v. State, 79 Ala. 59, 61.

Affirmed.  