Smith v. StateSmith v. State
This is an appeal from the judgment of the city court of Montgomery in a habeas сorpus proceeding. The record shows that the appellant (petitioner) was convicted in the criminal court of Jefferson county, May 7, 1904, of the offense of murder in the second degree, and. sentenced to be imprisoned in the рenitentiary for 30 years. Said judgment was affirmed by this court on January 9, 1905; but on February 14, 1905, on a rehearing, the judgment of conviction was reversed and the cause remanded. However, when the judgment of conviction was affirmed, the appellant was sent tо the penitentiary, and was still in the charge of the convict department, when the writ of habeas corpus was sued out on December 23, 1905. In the meantime one entire term of the criminal court of Jefferson count had passed; the cause being on the docket, but the record showing no continuance, or .other ordеr in relation to the case. On the second term of said court, to-wit, the September term, 1905, an order ivas made in said case, in said court, adjudging a forfeiture against said-petitioner, and an alias capias ordered to be issued against him. Pеtitioner claims that he is entitled to be released from confinement, and invokеs, first, the principles announced in cases where prisoners have been disсharged on-account of unreasonable delay in carrying out the sentence of the law; and, second, the principles on the subject of discontinuances, by which it is claimed that the facts recited show a discontinuance of the сase in the criminal court'of Jefferson county.
Upon the first proposition this court has gone over all of the cases upon the subject, and has held that the reason why discharges were granted in previous "cases was that, not only therе had been unreasonable delay in carrying out the sentence of the law, but also no suitable provision had been made for carrying out the sentence at .all. The court accordingly held that, although the prisoner be in the custody of some officer who. is not entitled to hold him, yet, where there is a person or of-' fiсer who is entitled to the custody of the prisoner under the sentence, “he will not, be discharged absolutely, but will be discharged from the custody of the person holding Mm, and committed to the lawful custody” of the
It is true that a criminal case, as well as a civil suit, may be discontinued by the act of the prosecuting officer for the state, and a discontinuance is defined as “a gap or cliasm in the proceеding, after the suit is pending.” But, in order to constitute such chasm, it is not sufficient that some ministeriаl officer has omitted to do something which it was his duty to perform, but it must be the act of thе prosecuting officer, indicating his intention to abandon the prosecution оf the case. — 12 Cyc. 378; Drinkard v. State,
On the other hand, when a cause is regularly on the docket, the passing of a term without the entering of an order continuing the same does not make such a chasm as to work a disсontinuance, unless the record discloses some act of the plaintiff or рrosecuting officer by which the chasm is produced. — Ex parte Owens,
The judgment of the court is affirmed.