35 So. 2d 50 | Ala. | 1947
Lead Opinion
The question presented on this petition for certiorari is whether J. O. Popwell, to whom we will refer as defendant, was properly discharged on habeas corpus in the Circuit Court of Jefferson County. He was convicted in the Recorder's Court of Birmingham for violating the State Firearms Act, Code 1940, Tit. 14, § 161 et seq., and his punishment fixed at a fine of $100 and costs of $3, and sentenced "to serve one hundred and eighty days (suspended) at hard labor for the city of Birmingham." The suspension of sentence was at the request of his attorney. The authority of the attorney to do so is not questioned. Within the period of one hundred and eighty days, supra, the recorder entered the following order, "The judgment of suspending the one hundred and eighty days is modified and the suspension is revoked and the one hundred and eighty day sentence is revised and the judgment of the court is that the defendant serve one hundred and eighty days at hard labor for the city."
The question is whether the recorder was authorized to make the suspension by an order so made within said period of sentence and direct his service of the one hundred and eighty days extending from that date.
The recorder at that time had no legal authority to suspend the sentence. Section 20, Title 42, Code (see Amendment No. 38 of the Constitution). But that authority was conferred by an Act of the Legislature approved July 22, 1947, H.B. 372, Loc.Acts 1947, p. 99 — not here material. The Court of Appeals in affirming the judgment of the circuit court in discharging the defendant seemed to rely largely on the case of Daley v. Decatur,
But in the instant case the judgment of sentence is not subject to that construction. The defendant was sentenced to serve one hundred and eighty days at hard labor for the city. That sentence was suspended at *455
the request of defendant by his attorney. The sentence was therefore perfectly valid. It was only the suspension of it which was invalid. The suspension was wholly outside the jurisdiction of the court, and was void on its face. The legal effect of the order made later by the recorder's court was simply to expunge that part of the judgment which suspended the sentence. Every court has the inherent power to set aside or expunge an order previously made or any part of it which shows on its face that it is void for any reason. Morgan v. Lehman, Durr Co.,
The instant case is essentially different from what the Court held to be the effect of the sentence in the Daley case, supra.
We have noted that the suspension was set aside, and defendant re-arrested within the one hundred and eighty day period of a valid sentence. It is not therefore controlled by the principle in Corporate Authorities of Scottsboro v. Johnston,
In now holding that the rearrest was not invalid when made, the result would be to hold that defendant was not entitled to his discharge on habeas corpus. But that period did not have long to run, and the court ordered in substance that he should serve the whole of it, and therefore it is important to determine that question also. It is carefully briefed by counsel on both sides.
If we abide by the Scottsboro case, supra, we would find that defendant should serve only the remainder of the period extending from the time of his rearrest, unless that question is affected by the circumstance that the illegal suspension was ordered at the request of defendant. In the Scottsboro case that circumstance is not mentioned, and therefore not there considered, presumably it was absent as a factor.
The principle is of course firm that the defendant could not by his consent extend upon the court the power to make an order which it had no jurisdiction to make. Ray v. Hilman,
But it is well settled that a defendant cannot claim the benefits of an illegal situation which he has brought about or was instrumental in procuring. "No party whether in a criminal or a civil proceeding, can invite the court into error and subsequently take advantage of the error." Ex parte Winston,
There are many illustrations of that principle in the books. Section 9 of the Constitution prohibits a person from being put in jeopardy twice for the same offense. Yet when he has been put in jeopardy and the judgment set aside on his motion or reversed on his appeal, he is not in position to claim exemption from another trial of that same offense. Turner v. State,
And so his release on habeas corpus in this case, at his instance, when it is found that he should not have been released (an error invited by him), does not serve to make the time during such release consume a part of his sentence.
In the case of Hunt v. State,
The Court of Appeals in this case found in a search of the original record in the Daley case, supra, that the suspension was at the request of defendant. But that could have no effect in that case because it was held that there was no legal sentence. His request could not give validity to asentence which was void. Here his request did not give validity to the suspension which was invalid and remained so. But the period of his liberty had by a void order of suspension made at his request should not be considered as a part of the term served in his valid sentence. The Court of Appeals in the Daley case properly did not treat the matter of his consent because it was immaterial in respect to the legal matter then determined. Of course on certiorari to this Court it was not considered for the same reason, also because it did not appear in the opinion of the Court of Appeals.
In the case of Persall v. State,
We are therefore of the opinion that the defendant can, sofar as here shown, be required to serve the entire one hundred and eighty day sentence which he has not actually served.
Reversed and remanded to the Court of Appeals.
All the Justices concur.
Addendum
We therefore conclude that the order here entered should be one of affirmance of holding of the Court of Appeals. It will be so ordered.
The rehearing is granted: the order of reversal is set aside, and the judgment affirmed.
Rehearing granted: judgment affirmed.
GARDNER, C. J., and LIVINGSTON, LAWSON, SIMPSON, and STAKELY, JJ., concur.
BROWN and FOSTER, JJ., dissent, adhering to the original opinion of Justice FOSTER.