58 So. 117 | Ala. Ct. App. | 1912
The appellant, Avhile confined .in. the county jail of. Barbour county,-held under .a. sentence of the circuit court, prosecuted a Avrit of habeas corpus,
The appellant argues that the indictment under which he was tried and convicted charges no offense known to the laws of the State of Alabama, and is unknown to the common law. The record does not set out the indictment, and this court is uninformed as -to what it may contain or charge and cannot pass upon that question. Ex parte Knight, 61 Ala. 482.
The judgment complained of as void shows that the defendant was arraigned on an indictment charging “burglary,” and pleaded guilty. The jury found -the the defendant “guilty upon his plea of guilty,” and the court thereupon entered a general judgment of guilty against the defendant, and sentenced him to imprisonment in the penitentiary for a period of five years. This, is not a void judgment, and not a judgment or sentence showing on its face an apparent unsurpation or excess of jurisdiction, such as would entitle the defendant to his discharge from imprisonment on a writ of habeas corpus. The court was one of general jurisdiction competent to try the case, enter a judgment of guilty, and impose sentence; and the judgment and sentence were sufficient even to support an appeal.—Shirley v. State, 144 Ala. 34, 40 South. 269; Talbert v. State, 140 Ala. 46, 37 South. 78; Robertson v. State, 123 Ala. 55; 26 South, 645; Driggers v. State, 123 Ala. 46; 26 South. 512; Wilkinson v. State, 106 Ala. 23, 17 South. 458; Gray v. State, 55 Ala. 86. This proceeding, however, is a collateral attack only on the judgment; and voidable informalities and irregularities are not available on ha
The judgment of conviction and sentence of the court is dated October 25, 1911, the writ of habeas corpus was sued out on November 10, 1911, and the petition was heard and return made on the 16th day of November, 1911. The terjn of court at which the defendant was sentenced adjourned on the 27th day of October, 1911. The sheriff in his return to the writ on November 16, 1911, stated that he held the petitioner under the judgment of conviction and sentence of the circuit court, imposed on October 25, 1911, giving no reason and making no showing why the petitioner had not been delivered to the agents of the board of convict inspectors. Code §§6513, 6514. The clerk of the court testified that the day after the adjournment of the term of court at which the defendant was sentenced he notified the convict authorities, as provided by law. The appellant contends that there has been an unreasonable delay in carrying out the sentence of the law, and that he has been held in custody of the sheriff in the county jail for an unreasonable length of time after having been sentenced to serve a term in the penitentiary. Upon this proposition, we are inclined to agree with petitioner; but this does not entitle him to be discharged absolutely because of his unlawful detention by the sheriff in the county jail. This subject has been carefully considered and passed upon by the Supreme Court. The proper order is not an absolute discharge, but a judgment releasing the prisoner from the unlawful detention by the sheriff, and remanding him to the custody
The order of the court below in remanding the prisoner to the custody of the sheriff of the county, to be forthwith delivered to the proper authorities to take him to the penitentiary of the State of Alabama to carry out the sentence of the circuit court, is correct. It is in effect an order discharging the prisoner from the custody of the sheriff for confinement in the county jail, and remanding him to the custody of the board of convict inspectors for confinement in the penitentiary.
The judgment denying the petition is affirmed.
Affirmed.
