Ex parte Adams

• Decision Date: 14 May 1914
• Docket Number: 82
• Citation: 187 Ala. 10,65 So. 514
• Parties: Ex parte ADAMS.
• Court: Alabama Supreme Court

65 So. 514

187 Ala. 10

Ex parte ADAMS.

No. 82

Supreme Court of Alabama

May 14, 1914

Certiorari to Court of Appeals.

James Adams was convicted for keeping a gaming table. From a judgment of the Court of Appeals, reversing a judgment of conviction and remanding for proper sentence (64 So. 371) defendant brings certiorari. Denied.

L.A Sanderson, of Montgomery, for petitioner.

R.C Brickell, Atty. Gen., and T.H. Seay, Asst. Atty. Gen., for respondent.

SAYRE J.

From the record transmitted to this court by the Court of Appeals from the original opinion of the Court of Appeals and its response to petitioner's application for a rehearing, and from notations of judgment made upon the record by the Court of Appeals, it appears: That petitioner was indicted, tried, and convicted in the city court of Montgomery for keeping a gaming table contrary to the statute, section 6985 of the Criminal Code; that he was sentenced to imprisonment in the penitentiary for the term of six months; that pending an appeal to the Court of Appeals sentence was suspended and petitioner admitted to bail; that the judgment and sentence of the trial court were at first affirmed; that afterwards the judgment of affirmance was set aside, the judgment and proceedings in the trial court were then affirmed down to the sentence, and the sentence alone was reversed, and the cause remanded in order that a proper sentence might be pronounced; that petitioner then made application for a rehearing, which was overruled. Petitioner now complains to this court that his application for a rehearing in the Court of Appeals was erroneously overruled; the effect of his argument being that, when the Court of Appeals ascertained and pronounced the sentence to be void, it should have ordered his discharge from custody. This contention is based upon the constitutional principle that no person shall, for the same offense, be twice put in jeopardy, nor be deprived of life, liberty, or property except by due process of law.

The sentence pronounced upon petitioner by the trial court was in contravention of the statute (Code, § 7620), was certainly without the power of the court in the particular case, was illegal, and, if the case had passed beyond the control of the court, would have authorized and required petitioner's discharge from confinement in the penitentiary on a writ of habeas corpus, according to some of our authorities. Ex parte Brown, 102 Ala. 179, 15 So. 602; Ex parte McKivett, 55 Ala. 236. The case of Ex parte Simmons, 62 Ala. 416, looks to the contrary. However this may be, on the record before us, the judgment of reversal in the Court of Appeals, to the sole end that a proper sentence might be pronounced in the trial court, had authority of law and was correct. Ex parte Robinson, 63 So. 177. This being the entire record presented for review, for aught we do know or can know in the exercise of revisory jurisdiction over the Court of Appeals, petitioner's case, upon its remandment to the trial court, will come before that court of final disposition in pursuance of the last judgment of reversal rendered by the Court of Appeals, at which time petitioner may show to the court any good reason that may have arisen pending the appeal why sentence to hard labor for the county should not be pronounced according to the law against which he has offended.

It appears that more than four months elapsed between petitioner's application to the Court of Appeals for rehearing and the date upon which it was overruled at a succeeding term. But the application was filed within the time prescribed by the rule made for such cases, and the Court of Appeals had not lost its power to hear and determine the application or reconsider its judgment by reason of the intervening lapse of its term. Its judgment in that behalf is therefore subject to review in this court....