Smith v. State

• Decision Date: 14 February 1907
• Parties: SMITH v. STATE.
• Court: Alabama Supreme Court

43 So. 129

149 Ala. 53

SMITH v. STATE.

Supreme Court of Alabama

February 14, 1907

Appeal from City Court of Montgomery; A. D. Sayre, Judge.

Taylor Smith was prosecuted for murder, and appeals from the judgment in habeas corpus proceedings. Affirmed.

B. M Allen and Rushton & Coleman, for appellant.

Massey Wilson, Atty. Gen., for the State.

SIMPSON J.

This is an appeal from the judgment of the city court of Montgomery in a habeas corpus proceeding. The record shows that the appellant (petitioner) was convicted in the criminal court of Jefferson county, May 7, 1904, of the offense of murder in the second degree, and sentenced to be imprisoned in the penitentiary for 30 years. Said judgment was affirmed by this court on January 9, 1905; but on February 14, 1905, on a rehearing, the judgment of conviction was reversed and the cause remanded. However, when the judgment of conviction was affirmed, the appellant was sent to the penitentiary, and was still in the charge of the convict department, when the writ of habeas corpus was sued out on December 23, 1905. In the meantime one entire term of the criminal court of Jefferson county had passed; the cause being on the docket, but the record showing no continuance or other order in relation to the case. At the second term of said court, to wit, the September term, 1905, an order was made in said case, in said court, adjudging a forfeiture against said petitioner, and an alias capias ordered to be issued against him. Petitioner claims that he is entitled to be released from confinement and invokes, first, the principles announced in cases where prisoners have been discharged on account of unreasonable delay in carrying out the sentence of the law; and, second the principles on the subject of discontinuances, by which it is claimed that the facts recited show a discontinuance of the case in the criminal court of Jefferson county.

Upon the first proposition this court has gone over all of the cases upon the subject, and has held that the reason why discharges were granted in previous cases was that, not only had there been unreasonable delay in carrying out the sentence of the law, but also no suitable provision had been made for carrying out the sentence at all. The court accordingly held that, although the prisoner be in the custody of some officer who is not entitled to hold him, yet, where there is a person or officer who is entitled to the custody of the prisoner under the sentence, "he will not be discharged absolutely, but will be discharged from the custody of the person holding him, and committed to the lawful custody" of the officer or party who is entitled to hold him. White v. State, 134 Ala. 197, 207, 209, 32 So. 320. From the principles decided in this case, and the cases cited, the order of the judge of the city court of Montgomery was correct, unless the failure to continue the case and the subsequent order in the criminal court of Jefferson county by which a forfeiture was taken worked a discontinuance of the case.

It is true that a criminal case, as well as a civil suit, may be discontinued...