State v. Gunter

• Decision Date: 24 November 1914
• Docket Number: 178
• Citation: 66 So. 844,11 Ala.App. 399
• Parties: STATE ex rel. ATTORNEY GENERAL v. GUNTER, Judge.
• Court: Alabama Court of Appeals

66 So. 844

11 Ala.App. 399

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

No. 178

Court of Appeals of Alabama

November 24, 1914

Rehearing Denied Dec. 5, 1914

Application by the State, on relation of the Attorney General, etc., for a writ of mandamus against Gaston Gunter, Judge, etc. Writ granted.

R.C. Brickell, Atty. Gen., for appellant.

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

PELHAM P.J.

After this court had corrected a former judgment of affirmance (see Minto v. State, 8 Ala.App. 306, 62 So. 376), and reversed it as to that part dealing with the sentence to be imposed on the defendant, and remanded the cause to the end that the trial court sentence the defendant as required by law (see Minto v State, 9 Ala.App. 95, 64 So. 369), the respondent, as the presiding judge of the trial court, refused, on the objection of the defendant, to impose the sentence as directed by the judgment of this court and as required by law, and the state brings this proceeding to enforce the action of the trial court to that end.

It is not questioned that mandamus is available as the proper remedy to compel the action of the trial court in sentencing the prisoner, Minto, if the duty to act exists--that is, if the trial judge by virtue of his office is in duty bound to impose the sentence.

The respondent in his answer admits the facts set up in the petition filed on behalf of the state by the Attorney General and the solicitor of the trial court, and seeks to justify his action by setting up certain matters hereinafter to be discussed. The following matters in justification are set up in the answer, and are not controverted by the petitioner but, on the contrary, are admitted:

First. That between the time when this court affirmed the judgment of the trial court in the case of Minto v. State (8 Ala.App. 306, 62 So. 376), imposing an unauthorized sentence to the penitentiary, and the time when it modified that judgment and in part reversed the judgment of the lower court and remanded the cause for the imposition of sentence as required by law (Minto v. State, 9 Ala.App. 95, 64 So. 369), the respondent had discharged the prisoner from custody on a habeas corpus proceeding, on the ground that he was illegally held in confinement by the penitentiary authorities of the state under a void sentence imposed by respondent; it being further set up in the answer in this connection, and admitted, that the appeal of the state from the order of respondent discharging the prisoner on habeas corpus was never perfected, but was dismissed in this court because not taken in the time allowed by law for prosecuting such appeals.

Second. That it was shown to the respondent, acting by virtue of his office as presiding judge of the trial court, when the prisoner was brought before him to be resentenced in conformity with the law and as ordered by the judgment of this court, that, during that period of time after the judgment of affirmance had been rendered in the said case by this court, and prior to the rendition of the judgment correcting that former judgment and ordering a remandment for the purpose of the imposition of a proper sentence as required by law, the prisoner had served part of the unauthorized sentence to imprisonment in the penitentiary.

The questions presented in this proceeding were considered and discussed in the hearing of the cases of Minto v State, 9 Ala.App. 95, 64 So. 369, and Adams v. State, 9 Ala.App. 89, 64 So. 371. While we regarded these matters as within the issues presented by the records of those cases and passed upon them in that light, yet, after what has been said by the Supreme Court in Ex parte Adams, 65 So. 514, and Ex parte Minto, 65 So. 516, in exercising its supervisory authority, the discussion of these questions in those cases was not necessary to a decision, and therefore must be considered in the nature of dicta, although treated and considered by us at the time as necessarily involved and embodied in the determination and pronouncement of judgment by the court on the questions before it. But, again considering the questions presented by this proceeding in the light of all that has been said in these cases, we are impressed with the soundness of the views expressed by the then presiding judge of this court in rendering the opinion of the court on the original hearings and on the applications for rehearing in the cases of Minto v. State, supra, and Adams v. State, supra. It seems to us that what is there said is a complete answer to the contention of the respondent urged here with respect to the matters set up as excuse for refusing to impose a sentence on the prisoner as required by law and as ordered by the judgment of this court remanding the said case that such action be taken by respondent by virtue of his office as presiding judge of the trial court. The case of Ex parte Lange, 18 Wall. 163, 21 L.Ed. 872, principally relied on then and now by counsel for respondent, is discussed and...