Higginbotham v. State

• Decision Date: 30 June 1924
• Docket Number: 6 Div. 587.
• Citation: 101 So. 166,20 Ala.App. 159
• Parties: HIGGINBOTHAM v. STATE.
• Court: Alabama Court of Appeals

101 So. 166

20 Ala.App. 159

HIGGINBOTHAM v. STATE.

6 Div. 587.

Court of Appeals of Alabama

June 30, 1924

Rehearing Denied July 22, 1924.

Appeal from Circuit Court, Jefferson County, Bessemer Division; J C. B. Gwin, Judge.

Petition of Bert Higginbotham for writ of habeas corpus. From a judgment denying the writ, petitioner appeals. Affirmed.

Bricken P.J., dissenting.

Pinkney Scott, of Bessemer, for appellant.

Harwell G. Davis, Atty. Gen., for the State.

SAMFORD J.

The petitioner was originally committed under and by virtue of an award of the court of domestic relations of Jefferson county in which court petitioner pleaded guilty to a charge of desertion, etc. On May 16th there was entered in the said domestic relations court the following:

"May 16, 1924, on plea of guilty the court awards the following punishment: That the defendant Bert Higginbotham serve a term of twelve months at hard labor for the county."

This order was signed, and then follows a conditional suspension. On May 21st petitioner sued out before the judge of the circuit court of Jefferson county a writ of habeas corpus, praying his discharge. Upon the hearing, by the answer and certified exhibits thereto, it appeared that petitioner was being held by order of the court of domestic relations, as above set out. When these facts were made to appear, without dispute, the circuit court declined to hear petitioner further, and remanded petitioner to the custody from which he had been taken.

It is here insisted that the act creating the court of domestic relations is void as being in violation of sections 104 and 106 of the Constitution. This contention is not tenable. Stone, etc., v. State ex rel., etc., 18 Ala. App. 154, 89 So. 304.

It is next insisted that the process upon which petitioner was arrested and carried before the domestic relations court was void in that it was issued by an officer not authorized by law to take the affidavit. This authority is expressly given to the officer issuing the original process by section 12, Acts 1923, p. 612, and we know of no law which prohibits the Legislature from so conferring this authority.

Webster's definition of "award" is, "A judgment, sentence, or final decision." It is held by our courts that, although the judgment entry shows no formal adjudication of guilt, yet, when the judgment does show a judgment fixing the sentence upon a verdict, the judgment will be held to be sufficient. In this case there is a plea of guilt and an award judgment sentence, fixing a sentence. The recitals are sufficient to imply a judgment of guilt. White v. State, 18 Ala. App. 50, 88 So. 451; Walker v. State, 12 Ala. App. 229, 67 So. 719; Driggers v. State, 123 Ala. 46, 26 So. 512; Shirley v. State, 144 Ala. 35, 40 So. 269; Stanfield v. State, 3 Ala. App. 54, 57 So. 402.

It may be true as contended by petitioner that his domicile had been fixed in Calhoun county, and that whatever act was committed was in Calhoun county, but the domestic relations court had jurisdiction of the crime charged, and the petitioner, by his plea of guilty, gave jurisdiction of his person to the court. Being a court of competent jurisdiction, and having by the plea acquired jurisdiction of the person, the court should proceed to a legal disposition of the case. Having jurisdiction of the defendant and of the subject-matter, the judgment of conviction cannot be reviewed by a writ of habeas corpus. Davis v. State, 153 Ala. 73, 45 So. 154; Kirby v. State, 62 Ala. 51; Ex parte Brooks, 51 Ala. 60; King v. State, 16 Ala. App. 341, 77 So. 935.

The circuit judge did not err in denying the writ as prayed, and his judgment is affirmed.

Affirmed.

BRICKEN P.J. (dissenting).

The purported judgment of conviction signed by Virginia H. Mayfield, judge, and upon which this petitioner is held in the county jail, is in words and figures as follows:

"May 16, 1924.

"On plea of guilty, the court awards the following punishment: That the defendant, Bert Higginbotham, serve a term of twelve months at hard labor for this county.

"Virginia H. Mayfield, Judge."

In my opinion this is...