Keene v. State
| Decision Date | 23 November 1954 |
| Docket Number | 3 Div. 985 |
| Parties | Louis KEENE v. STATE. |
| Court | Alabama Court of Appeals |
Walter G. Woods, Tuscaloosa, for appellant.
Si Garrett, Atty. Gen., Robt. Straub, Asst. Atty. Gen., for the State.
This is an appeal from a decree of the Circuit Court of Montgomery denying appellant's petition for discharge from the penitentiary under a habeas corpus proceedings.
The petitioner was indicted in Tuscaloosa County for violating our Prohibition Law, Code 1940, Tit. 29, § 1 et seq., and to such indictment he entered a plea of guilty. Judgment and sentence were entered and pronounced pursuant to such plea.
Thereafter the petitioner perfected his appeal to this court, the case coming here on the record proper. An order of affirmance was entered by this court, and certiorari was denied by the Supreme Court when petitioner carried his appeal on to that forum. See Keene v. State, 74 So.2d 273.
The basis of petitioner's contentions in support of his habeas corpus petition were:
1. The original judgment and sentence were void because of vagueness and uncertainty in the sentence pronounced.
2. That Section 75 of Title 45, placing hard labor convicts under control of the county commissioners, and Section 97 of Title 45, authorizing county commissioners to dispose of its county convicts to the State Department of Corrections and Institutions, were repealed by Section 325, Title 15, setting forth what are legal punishments, inasmuch as Section 325, supra, was reenacted subsequent to the passage of Sections 75 and 97 of Title 45, supra.
3. That Section 97, Title 45, Code of Alabama 1940, is void in that it permits County Boards of Revenue to change a sentence imposed by a court and impose a punishment which the court could not impose, i. e., hard labor for the State instead of for the county.
In the hearing in the court below the answer of the respondent, as Warden of Kilby Prison, was directed toward justifying his detention of the petitioner by virtue of a judgment and sentence of the circuit court of Tuscaloosa County, a hard labor transcript issued by the Clerk of the Circuit Court of Tuscaloosa County, and a resolution of the Board of Revenue of Tuscaloosa County. This resolution was passed by the governing Board of Tuscaloosa County on 10 March 1951, and declared that 'Tuscaloosa County desires to dispose of its County Convicts under and in accordance with Article 5 of Chapter 2 of Title 45 of the 1940 Code of Alabama and that the Sheriff of Tuscaloosa County, Alabama, be and hereby is authorized to deliver all of the county convicts sentenced to hard labor for Tuscaloosa County, Alabama, to the Department of Corrections and Institutions of Alabama, under and pursuant to the provisions of Section 97 of Title 45 of the 1940 Code of Alabama and any change or amendments thereto, this order and resolution to remain in effect for a period of not less than three years.' etc.
The only part of the judgment questioned by petitioner relates to the imposition of the sentence. The original judgment in this aspect read:
-- 'It is therefore considered by the court and it is the order, judgment, and sentence of the court that the defendant, Louis Keene, do and perform hard labor for the County of Tuscaloosa for 30 days to pay the fine, for 122 days at the rate of 75cents per day to pay the costs in this case, and for 90 days additional as punishment for this offense.'----
It appears from the evidence submitted in the habeas corpus proceedings that after appellant's liquor prosecution had taken its delayed and delaying course through all appellate processes, the circuit judge amended his bench notes, and without notice to petitioner the judgment as originally entered was amended by inserting the words 'hard labor' after the words and figures '90 days,' and before the word 'additional,' and it is in this amended form that the respondent introduced the judgment in the habeas corpus proceedings.
Counsel for appellant argues that this latter judgment is void as the trial court had lost jurisdiction over it, and that the original judgment is void because of vagueness, and therefore petitioner was entitled to his discharge.
If counsel's argument that the amended judgment is void and a nullity, be accepted, a point we need not decide, then certainly the original judgment and sentence was not affected by this alleged abortive amendment.
A reading of this original judgment, as a whole, we think clearly shows, if ordinary understanding of our language is not tortured, that the circuit court imposed a hard labor sentence on the petitioner in three aspects: 1, for 30 days to pay the fine, 2, for 122 days to pay the costs, and 3, for 90 days additional as punishment.
The judgment was therefore valid, and the lower court correctly ruled in denying petitioner relief in this aspect.
The lower court's ruling in the habeas corpus proceedings was correct on the further grounds that under our decision if a sentence is vague and uncertain, (a point we do not admit in this case) such defect does not render a judgment void, but such judgment is considered only erroneous and irregular. Sullivan v. State, 208 Ala. 473, 94 So. 473; ...
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Norris v. State, 6 Div. 213
...not guilty to guilty, stood by, and without objection accepted a minimum sentence upon the solicitor's agreement. See Keene v. State, 37 Ala.App. 713, 76 So.2d 180; Annotation 76 A.L.R. "His time for appeal now long past, Thomas may not, without trenching on invited error, use the judge's l......
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Thomas v. State, 3 Div. 51
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Walters v. State, CR75--214
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