Stout v. StateStout v. State
Appeal from denial of habeas corpus. Appellant was remanded to the Warden of Kilby Prison.
The State’s “Return & Answer” to the writ alleged that Stout was held under a mittimus (i. e. an indiсtment, judgment and sentence of the Jefferson Circuit Court, Birmingham Division). The sentencе for three years was passed October 27, 1959 on a plea of guilty.
The court put Stout on probation for five years (with the three-year sentence susрended during that time).
The State’s return shows:
“This the 28th day of May, 1962, upon it being shown to the Court that the defendant has violated the terms of his probation, it is ordered by the Court that said probatiоn be and the same is hereby revoked and his sentence put into effect.”
Simultaneously with said return, the Attorney General, in writing, moved the court to recall the writ because of said judgment and sentence and also:
“2. For that where, as here, the judgment and sentence of the circuit court are, as to all jurisdictional matters, regular, it is not allowable to impeach the court’s jurisdiction by pаrol testimony on habeas corpus.”
No ruling appears as to said motion.
II
In the appellant’s brief, it is argued that the reinstatement of sentence was with the understanding that the service of the thrеe years was to be concurrent with another unspecified sentence.
Although under Code 1940, T. 42, § 24, the court has power over the suspensory period, nеvertheless, there is no power thereunder to modify the imprisonmnt period оriginally pronounced. Persall v. State,
Therefore, since it was pronounсed in 1959, the sentence in question was not brought within the influence of the 1961 Amendment of Code 1940, T. 45, § 32. Even if it were within the trial court’s power to have prescribed, yet under Crоok v. State,
Ill
Reversible error appears'because the only evidence to support Stout’s detention is unsupported and inconclusive pafol testimony. This evidence appears as follows:
“THE COURT: Well, what was he serving back in 1962 ?
“MR DEAN: He was serving three years from Birmingham. Jefferson County.
“MR LOTTMAN: Yes, there is a notation in here of March 30th, 1962.
“THE COURT: Is that this man’s record right there ?
“MR DEAN: Yes, sir.
“THE COURT: Mr. Lottman, would you like to have an opportunity to look it over there with Mr. Dean ?
“MR. LOTTMAN: Yоur Honor, I am familiar with it — I know there is another case involved here but — ■
“THE COURT: Well, if it is purеly a mechanical problem of his time being finished then the Court will give him credit for it. Thаt’s the reason I am giving you an opportunity to look it over because quite oftentimes a prisoner will have several sentences and it gets to be very confusing and I think I have corrected a record or two and although Mr. Deаn does a very diligent job occa*264 sionally he will make a mistake sometimes like everyone else.”
Since the State failed to adduce anothеr felony judgment which would show a sentence ahead of that put into effect by the revocation order, the best evidence rule has not been met. The three years has prima facie expired.
Code 1940, T. 45, § 57 reads:
"On the trial of any convict for any offense committed within the penitentiary, or other convict prison or convict camp, the fact of confinement in the penitentiary shall bе presumptive evidence of a legal conviction and sentencе of imprisonment, and a copy of the transcript of the conviction аnd sentence filed with the department and certified by it to be correct, shаll be received as evidence of such conviction.”
See Ex parte Nations,
The judgment below is due to be reversed and the cause is remanded for further proceedings consistent herewith.
Reversed and remanded.