State v. Johns

State v. Johns. Habeas Corpus Proceedings. 1. Indictment; insufficiency of charge of adultery. — An indictment which charges that the defendant, “a man did live with * * * * * * a woman, against the peace and dignity of the State of Alabama,” charges no offense against the laws of this State. Appeal from Order of Probate Judge of Olay County. Heard before the Hon. F. J. Ingram. The facts of the case are sufficiently stated in the opinion. No counsel marked as appearing for appellee. Massey Wilson, Attorney-General, for the State. [MAJORITY — TYSON,' J.-] TYSON,' J.- The appeal in this case is by the solicitor from an order of the judge of probate discharging the petitioner on writ of habeas corpus, on the ground that the indictment for which the warrant for his arrest was issued charges no offense known to the law. The indictment and warrant are- both shown in the return of the sheriff in answer to the mandate issued upon the petition. The indictment simply charges that the petitioner, a man, did live with Mollie Sorrell, a woman, against the peace and dignity of the State of Alabama. Clearly, no offense against the law is here charged. “A court can punish for no act except what is made criminal by law; it has no power to punish for something unknown to the law. It has jurisdiction to try and punish only certain offenses, and those must be made criminal by law. If an indictment shows no offense, there is no criminality shown, and there is nothing of which a court can take jurisdiction. And if a court have no jurisdiction its action is void — á condition which is the very object of habeas* corpus to cure. Voidable informalities or irregularities are not reached by it, but fatal jurisdictional defects are ever within its'range, either before or after indictment, and even after conviction and judgment. — Note 1 to § 245 in Church on Habeas Corpus; 15 Am. & Eng. Ency. Law, (2d ed.) 200. Affirmed. McClellan, C.J., Simpson and Andeeson, J.J., concurring.