66 So. 844 | Ala. Ct. App. | 1914
After this court had corrected a former judgment of affirmance (see Minto v. State, 8 Ala. App. 306, 62 South. 376), and reversed it as to that
It is not questioned that mandamus is available as the proper remedy to compel the action of the trial court in sentencing the prisoner, Minto, if the duty to act exists — -that is, if the trial judge by virtue of his office is in duty bound to impose the sentence.
The respondent in his answer admits the facts set up in the petition filed on behalf of the state by the Attorney General and the solicitor of the trial court, and seeks to justify his action by setting up certain matters hereinafter to be discussed. The following matters in justification are set up in the answer, and are not controverted by the petitioner, but, on the contrary, are admitted :
First. That between the time when this court affirmed the judgment of the trial court in the case of Minto v. State (8 Ala. App. 306, 62 South. 376), imposing an unauthorized sentence to the penitentiary, and the time Avhen it modified that judgment and in part reversed the judgment of the lower court and remanded the cause for the imposition of sentence as required by law (Minto v. State, 9 Ala. App. 95, 64 South. 369), the respondent had discharged the prisoner from custody on a habeas corpus proceeding, on the ground that he was illegally held in confinement by the penitentiary authorities of the state under a void sentence imposed by respondent; it being further set up in the answer in this connection,
Second, That it was shown to the respondent, acting by virtue of his office as presiding judge of the trial court, when the prisoner was brought before him to be resentenced in conformity with the law and as ordered by the judgment of this court, that, during that period of time after the judgment of affirmance had been rendered in the said case by this court, and prior to the rendition of the judgment correcting that former judgment and ordering a remandment for the purpose of the imposition of a proper sentence as required by law, the prisoner had served, part of the unauthorized sentence to imprisonment in the penitentiary.
The questions presented in this proceeding were considered and discussed in the hearing of the cases of Minto v. State, 9 Ala. App. 95, 64 South. 369, and Adams v. State, 9 Ala. App. 89, 64 South. 371. While we regarded these matters as within the issues presented by the records of those cases and passed upon them in that light, yet, after what has been said by the Supreme Court in Ex parte Adams, 65 South. 514, and Ex parte Minto, 65 South. 516, in exercising its supervisory authority, the discussion of these questions in those cases was not necessary to a decision,, and therefore must be considered in the nature of dicta, although treated and considered by us at the time as necessarily involved and embodied in the determination and pronouncement of judgment by the court on the questions before it. But again considering the questions presented by this proceeding in the light of all that has been said in these cases, we are impressed with the soundness of the views
The discharge of the prisoner on a petition in a habeas corpus proceeding was illegal and but a mere nullity, as the court was without jurisdiction in the premises, as it is shown that this action was taken by the trial judge, the respondent, at a time after the judgment of the trial court had been affirmed and merged in a judgment of this court, and while this court, as we know from its own records, of which we take cognizance, yet had'the judgment in its breast and had control over it. Clearly,
“The writ of habeas corpus is not to be permitted to be used to obtain a discharge from an illegal restraint, so long as the party complaining may be protected against it by an appellate court which still retains the power to require a legal sentence to be substituted for the illegal one which is complained of.” — Minto v. State, supra.
The provisions of section 7035 of the Code have reference to a legal discharge on habeas corpus proceedings instituted by authority of law. The judgment discharging the prisoner on habeas corpus, being void, is open to collateral attack. Furthermore, the ecmse upon which the prisoner, Minto, predicated his petition for the writ of habeas corpus, and the cause relied on as justifying the granting of the writ by the judge of the city court, was the prisoner’s illegal restraint under a void sentence, a sentence not authorized by law; and, even if it should be conceded that the judge of the city court acquired jurisdiction to grant the writ and enter an order relieving the prisoner from restraint for that cause, yet there is nothing in section 7035 of the Code that stands in the way of the city court’s subsequently imposing a legal sentence, following a proper judgment of conviction for crime, and committing him to the custody of the proper authority in the enforcement of that sentence.
The sentence imposing imprisonment in the penitentiary is admitted by brief filed by counsel for respondent to be void. Certainly this sentence cannot, at the option of the prisoner, be treated as valid for the purpose of
The petition is allowed, and the prayer of the petition is granted, and a writ of mandamus is ordered issued in accordance therewith, directed to respondent, in order that the judgment of the law may be pronounced by the respondent as presiding judge of the trial court in imposing sentence as required by law, in