Thе petitioner prays a writ of habeas corpus on the fоllowing agreed statement of facts ; ■
“In this cause it is agreed by knd between' the undersigned as counsel for the petitioner- and Harwell G. Davis, as Attorney General,- and Lamar Field, as Assistant Attorney General, of the state of Alabama, that the facts in connеction with this proceeding are as follows:.
“On April 12, 1923, the Verdict was returned by the jury in the circuit court of Etowah county, Ala., in a cаse pending against the said' Albert Williams, finding him guilty of forgery in the second dеgree, as charged in the indictment against him; that on April 14, 1923, as punishmеnt for the offense named, the defendant was sentenced tо the penitentiary for an indeterminate term of not less than six, yеars nor more than eight years, six years being the minimum and eight'years bеing the maximum of this sentence, that on said April 14, 1923. the defendant toоk an appeal in said case to the Court of Appeals of Alabama, and elected not to have the sentеnce suspended pending the appeal, but to go to the penitentiary under said sentence and abide the result of said appeal, and it was at that time ordered by the court thаt the sentence be not suspended; that on September 7, 1923, a petition,was filed in said case by defendant praying that he be admitted to bail, and on said date the judge of the circuit cоurt of Etowah county, Ala., made an order fixing the defendant’s bail pending the appeal' in the sum of $6,500, to be conditioned and approved as the law directs; the sentence against dеfendant not having been suspended at said time.- A copy of thе judg-. ment entry in this, cause is attached to the return of J. S. Harris and admittеd to be a true and correct copy of, the judgment entry, and a copy of the petition filed by the. defendant ■seeking to be admitted to bail is also hereto.. *598 attached as Exhibit A and аdmitted to be a correct copy of the petition. It is also admitted that the bench note made by the judge of the circuit court of Etowah county covering the proceedings before him on September 7, 1923, is correctly shown below; that on Sеptember 11 the said.Albert Wilson tendered a bond which was approved by the clerk and the sheriff of Etowah county, which is now on filе in the office of said clerk.”
Said bench note is as follows:
“September 7, 1923, on petition of defendant, bail in this cause feed, pending appeal in the sum of $6,500, to be conditioned and approved as the law dirеcts.”
The judge of the circuit court granted the writ, and ordered thе petitioner discharged.
The right of the petitioner to a discharge is based upon the order of the circuit court of. Etоwah- county made and entered on September 7, 1923, granting and fixing bail for petitioner in the sum of $6,500.
The circuit court of Etowah county was without jurisdiction to make this order. The cause had already been transferred to this court. If petitioner has any rights under the statute approved July 27 1923 (Gen. Acts 1923, p. S7), he must proceed in this court and not the circuit court. De Bardelaben v. State,
The judgment of thе circuit court is reversed, and a judgment will here be rendered, remanding the ..petitioner to the convict authorities.
Reversed and rendered.
Notes
Ante, p. 330.