
    State v. Sistrunk.
    
      Habeas Corpus 'Proceedings.
    
    1. Habeas corpus proceedings; jurisdiction of committing magistrate; other judge or magistrate icithout jurisdiction to award habeas corpus pending preliminary examination. Where upon an affidavit made before a justice of the peace charging a felony, a warrant is issued and the accused is arrested on such warrant and lodged in jail until such time as the charge might be investigated by the magistrate, and while thus confined and prior to further action in the case before the justice of the peace, no judge of any court or other magistrate has authority to interpose by writ of habeas corpus for the purpose of determining the rightfulness of the accused’s imprisonment; since the jurisdiction of the justice having attached for the preliminary trial of the accused, it could not be usurped or ousted by any other committing magistrate.
    Appeal from order of Judge of City Court of Montgomery.
    Heard before the Hon. A. 1). Sayre.
    Tlie appeal in tliis case is prosecuted by tbe State of Alabama from an order of tbe judge of tbe city court of Montgomery discharging tbe appellee, Andrew Sistrnnk from custody on habeas corpus proceedings.
    Massey Wilson, Attorney-General, for the State.
    Oscar S. Lewis and E. R. Alexander, for petitioners.
   McCLELLAN, C. J.

An affidavit having been made before a justice of tbe peace charging Andrew Sistrnnk with tbe offense of robbery, tbe justice issued thereon a warrant for tbe arrest of said Sistrnnk, and commanding that be be brought before said justice on said charge. Sistrnnk was arrested on this warrant and lodged in the. county jail until such time as the charge might be investigated by'the magistrate. While thus confined and prior to further action in the case before the justice, the prisoner sued out a writ of habeas corpus before the judge of Montgomery city court and upon the return thereto and the hearing thereon the city judge made an order for his discharge from custody, finding as a fact in the case that the petitioner had, in legal contemplation, been tried and acquitted of the offense now charged against him. This was error.. The magistrate issuing the warrant, and before whom it commanded that the defendant should be brought had jurisdiction of the case. When the accused is brought before him for preliminary hearing the defense of former acquittal may be set up and, if proved, it will be the duty of that magistrate to discharge the prisoner; and meantime no other magistrate has jurisdiction on habeas corpus to inquire into the accusation and discharge him. So it has been expressly ruled in a recent decision of this court. — State v. Humphrey, 125 Ala. 110.

The order of the judge of the city court must be reversed, and a judgment will be here entered denying and dismissing the petition for habeas corpus. The prisoner ivill remain in custody until discharged in due course of law.

Reversed and rendered.  