This is an original proceeding in habeas corpus. The petition shows and the return admits that petitioner was tried on a charge of assault with intent to murder and was convicted of aggravated assault and that thereupon petitioner was sentenced to serve one (1) year at hard labor in State Prison.
The sentence to State prison was without authority of law. See Sec. 5061 R. G. S., 7163 C. G. L., Sec. 5004 R. G. S., 7103 C. G. L.
The judgment and sentence being not authorized by law, the jurisdiction of the Circuit Court continues until a lawful judgment shall have been entered.
So the petitioner should be now delivered to the Sheriff *Page 776 of Madison County and by him presented to the Circuit Court of such County at its next regular or special term, there to receive lawful judgment and sentence under the verdict heretofore rendered.
So ordered.
TERRELL, C. J., and THOMAS, J., concur.
WHITFIELD, J., concurs in opinion and judgment.
Justices BROWN and CHAPMAN not participating as authorized by Section 4687, Compiled General Laws of 1927, and Rule 21-A of the Rules of this Court.