¶1"We think a prisoner, who is in custody simply on a warrant of commitment, issued after preliminary examination, and before any indictment has been found, ean, when brought on habeas corpus before a proper officer, claim as a matter , of right that such officer shall hear and pass on all legal evidence which he offers, touching the question of his guilt. If, on such examination, “it appear that no offense has been committed, or that there is no probable cause for charging the defendant therewith,”- the prisoner must be discharged. “If it appear that an offense has been committed, and there is probable ■cause to believe the defendant is guilty thereof,” the defendant must be bailed or committed as the law directs. Code, §§ 3405-6.
¶2In determining, as stated above, that prisoners can claim as a matter of right to have their witnesses heard, we think we are giving effect to the following provisions of the Code: §§ 3740, ¶ 3; 3744, ¶ 4; 3722, 3723, 3732, 3733, 3734, 3746.
¶3We do not, in thus laying down the rule, intend to declai'e that there are not other cases in which witnesses should be heard. They are always heard, if offered, on applications for bail; and there are doubtless other cases of controverted fact, where such practice would be proper.
¶4Neither is it our purpose to assert the doctrine, that by *51the writ of mandamus we can control the judgment of the primary court, on the evidence in the cause. Ve exhaust our power when we require the evidence to be heard and considered. — The State v. Bowen, 6 Ala. 611; Commonwealth v. Judges, 3 Binney, 273; Commonwealth v. Cochran, 6 Binney, 456; Hull v. Supervisors of Oneida, 19 Johns. 259.
¶5A rule is ordered to the Hon. Robert Dougherty, judge of the 9th judicial circuit, requiring him to show cause why a peremptory mandamus shall not issue against him, as prayed for, provided the relator is in custody, as stated in his application for the writ of habeas corpus.