Ex parte Gunter

• Decision Date: 13 May 1915
• Docket Number: 156
• Citation: 193 Ala. 486,69 So. 442
• Parties: Ex parte GUNTER. v. GUNTER, Judge. STATE ex rel. ATTORNEY GENERAL
• Court: Alabama Supreme Court

69 So. 442

193 Ala. 486

Ex parte GUNTER.

STATE ex rel. ATTORNEY GENERAL v. GUNTER, Judge.

No. 156

Supreme Court of Alabama

May 13, 1915

Rehearing Denied June 30, 1915

Certiorari to Court of Appeals.

Application by the State, on the relation of the Attorney General, etc for mandamus against Gaston Gunter, Judge of the City Court of Montgomery. From a judgment of the Court of Appeals (66 So. 844), granting the writ, defendant petitions for certiorari. Writ denied.

McClellan and Gardner, JJ., dissenting in part.

Hill Hill, Whiting & Stern and R.T. Rives, all of Montgomery, for appellant.

Robert C. Brickell, Atty. Gen., and T.H. Seay, Asst. Atty. Gen., for appellee.

PER CURIAM.

Petitioner seeks to review the judgment of the Court of Appeals by which that court ordered a writ of mandamus to the judge of the city court of Montgomery, commanding him to pronounce sentence according to law upon Minto and Adams who had been duly convicted in the trial court. The cases against Minto and Adams were identical in every respect, and a history of them may be found in Ex parte Adams, 65 So. 514, Minto v State, 8 Ala.App. 306, 62 So. 376, Adams v State, 9 Ala.App. 89, 64 So. 371, Minto v. State, 9 Ala.App. 95, 64 So. 369, and State ex rel. Attorney General v. Gunter, Judge, etc., 69 So. 445.

When this matter was first brought to our attention, we refused to consider the question now presented for the reason that the case was not then ripe for decision on the point. Since then Minto and Adams have been taken before the trial court for sentence, but upon their uncontroverted showing that they had for a time suffered imprisonment in the penitentiary under the sentence pronounced upon them prior to their appeal, and that they had been discharged from that custody on writs of habeas corpus, the respondent in this proceeding, acting in his capacity as trial judge, refused to pronounce sentences to hard labor for the county, and discharged the prisoners.

No question was raised in the Court of Appeals concerning the remedy to which the state has resorted. None is raised in this court.

In the brief for petitioner much is said of the discharge of the prisoners on habeas corpus. The sentence to the penitentiary was clearly void, the statute permitting a sentence to hard labor for the county only. Ex parte Brown, 102 Ala. 179, 15 So. 602. But the discharge on that proceeding was a discharge merely from custody under the void sentence, and not from the penalty attached by law to the offense of which the prisoners had been legally convicted. In re Clyne, 52 Kan. 441, 35 P. 23; State v. Schierhoff, 103 Mo. 47, 15 S.W. 151; State v. Fley, 2 Brev. 338, 4 Am.Dec. 583; Walker v. Martin, 43 Ill. 508; Ex parte Boothe, 3 Wis. 145.

The remaining question is whether respondent in this proceeding was without power to pronounce sentence by reason of the fact that the prisoners had suffered under the void sentence to the penitentiary. If nothing had intervened since the judgment of conviction to deprive respondent, as judge, of the power to pronounce sentence, it was his duty to do so according to the statute made and provided for the punishment of offenders in like case with the prisoners. That the continuity of the prosecution had been preserved, and that the court had power to pronounce a proper sentence, apart from any effect the imprisonment of Minto and Adams in the penitentiary in the meantime may have had, was decided by this court in Ex parte Adams, supra.

Respondent in the proceeding for mandamus, petitioner in this court, relies upon Ex parte Lange, 18 Wall. 163, 21 L.Ed. 872. In that case the facts were just these: The statute of the United States authorized imprisonment not exceeding one year or a fine not exceeding $200. The court, through inadvertence, imposed both punishments, when it could lawfully impose but one. Lange paid the fine, and it had passed into the treasury of the United States, and beyond the control of the court, or of any one else but the Congress of the United States. The prisoner being again before the trial court on a writ of habeas corpus, the former judgment and sentence was vacated, and he was sentenced anew to imprisonment. On a writ of habeas corpus to be discharged from custody under the last sentence, the Supreme Court of the United States ordered the prisoner's discharge, on the ground that to hold otherwise would punish him twice for the same offense. It must be noted that in that case the prisoner had suffered such punishment as might have been lawfully imposed upon him; his punishment under the first sentence was not wholly unlawful; it was in excess of the statute, and to the extent of that excess only was it unlawful. If we might confine our attention to the language and argument of the opinion of the Supreme Court of the United States, the principle upon which it proceeds would be stated as follows: When a court has once imposed a sentence, whether in accordance with law or not, which has been served or performed in whole or in part, it has no jurisdiction to impose another, either in addition to or in substitution for the first. The effect of the mere language of the opinion "has been so stated by the Supreme Judicial Court of Massachusetts in Sennott's Case, 146 Mass. 489, 493, 16 N.E. 448, 4 Am.St.Rep. 344.

In Ex parte Parks, 93 U.S. 18, 23, 23 L.Ed. 787, Mr. Justice Bradley thus stated the ground of the judgment in the Lange Case:

"In Ex parte Lange we proceeded on the ground that, when the court rendered its second judgment, the case was entirely out of its hands. It was functus officio in regard to it. The judgment first rendered had been executed and satisfied. The subsequent proceedings were therefore, according to our view, void."

The authority of adjudged cases is confined to the points actually decided, and the true principle of the decision. "In every court, if a case varies from the facts and circumstances of preceding authorities, the judge is at liberty to found a new decision on these circumstances." Realty Investment Co. v. Mobile, 181 Ala. 184, 61 So. 248. Looking to the true principle of Ex parte Lange, we perceive that it is not authority against the ruling of the Court of Appeals in this case, for here the sentence first pronounced was absolutely void, and yet the continuity of the prosecution had been preserved.

The effect of the decision in Re Bonner, 151 U.S. 242, 14 Sup.Ct. 323, 38 L.Ed. 149, to which we are referred as authority for the mandamus in this case, may be stated thus: Where a conviction is correct, but the sentence pronounced is void, there is no good reason why jurisdiction of the prisoner should not be again asserted by the court that imposed the sentence, in order that its defect may be cured. The principle of the case is that punishment inflicted without authority of law cannot be allowed by the courts as a sufficient vindication and satisfaction of the law. That case is authority for the proposition that, upon the remandment of the cases of Minto and Adams to the trial court, sentence should have been pronounced according to the mandate of the statute against which they had offended, and the principle of the decision seems to be necessary to the proper administration of justice. The continuity of the prosecution having been preserved, the case on its last presentation to the trial court was unaffected by the unlawful confinement of the prisoners in the penitentiary pending the final judgment of the Court of Appeals, and was in the same category with numerous cases in which--no error found, except in the sentence pronounced--reversals have been ordered by courts of appellate jurisdiction to the sole end that proper sentence might be pronounced.

Certiorari denied, with opinion. All the Justices concur.

McCLELLAN J.

I think the Court of Appeals correctly awarded the writ of mandamus requiring the resentence of Minto and Adams, and hence that the petition of the respondent for writ of certiorari to the Court of Appeals should be denied. I do not, however, agree with the foregoing opinion in respect of the treatment it accords the matter and the...