Williams v. City of Birmingham

• Decision Date: 10 January 1961
• Docket Number: 6 Div. 808
• Parties: Evie Lee WILLIAMS v. CITY OF BIRMINGHAM.
• Court: Alabama Court of Appeals

Page 713

133 So.2d 713

41 Ala.App. 208

Evie Lee WILLIAMS v. CITY OF BIRMINGHAM.

6 Div. 808.

Court of Appeals of Alabama.

Jan. 10, 1961.

Rehearing Denied Feb. 7, 1961.

Morel Montgomery, Birmingham, for appellant.

Wm. C. Walker, Birmingham, for appellee.

HARWOOD, Presiding Judge.

Appellant, petitioner below, takes this appeal from a judgment of the Circuit Court of Jefferson County, Alabama, denying petitioner's release from custody on habeas corpus.

Petitioner was a prisoner of the City of Birmingham, by virtue of a judgment of the Circuit Court of Jefferson County imposing a fine and sentencing petitioner to 180 days in jail. The fines were paid and the only question here concerns the jail sentence.

Petitioner served eight days of the sentence and was granted parole by the City of Birmingham on April 8, 1960. On Oct. 5, 1960, petitioner was arrested again on a charge of violating the anti-lottery ordinances of the City of Birmingham.

On this same day petitioner's parole was revoked and petitioner returned to jail to serve the remaining 172 days of the original sentence. The instant petition for habeas corpus was filed on Oct. 13, 1960, and on Oct. 15, petitioner was convicted on the charge for which she was arrested on Oct. 5.

Petitioner in seeking release has in no way questioned the validity of the 180 day sentence, but asserts that her imprisonment on this sentence is illegal because she had served this sentence while on parole. Petitioner's contention in this regard turns on whether or not a city convict while on parole is deemed to be serving his sentence outside of the prison walls.

Prior to the enactment of our parole and probation statute, the law was that a parole was in the nature of a conditional pardon, and a convict who broke the condition or conditions of his parole was subject to be remanded to custody to serve his unexpired sentence, and this even after the time at which the sentence would have ended has passed but for its suspension. Fuller v. State, 122 Ala. 32, 26 So. 146, 45 L.R.A. 502.

Section 599, Tit. 37, Code of Alabama 1940, provides, among other things, that a parole violator 'shall be required to carry out the sentence of the recorder or of the court as though on parole had been granted him, notwithstanding his sentence would have ended but for suspension thereof by the parole.'

The above provision, enacted in 1915, is but a reflection of the same principle enunciated in the Fuller case, supra.

To this same effect is Section 1091 of the General Code of Birmingham 1944, which provides among other things that upon revocation of a parole granted a city convict 'the time during which such convict shall have been at liberty under such parole shall not be computed in determining the date of expiration of such sentence.'

While Pinkerton v. State, 29 Ala.App. 472, 198 So. 157, is to the effect that a State convict on parole is yet, under the provisions of our pardon and parole statute, in the legal custody of the warden of the prison until the expiration of the term specified in his sentence, and is in effect serving his sentence outside of prison walls, the doctrine of the Pinkerton case, supra, rests squarely upon the interpretation of our pardon and parole statutes relating to State convicts. It has no application to municipal convicts.

The law in relation to city convicts is yet as in Fuller v. State, supra.

Appellant being a city convict has not therefore, served her sentence while out on parole.

Appellant's remaining contentions that the court should have granted her release on habeas corpus are based on alleged defects in the granting or the revocation of her parole. For us to review these contentions, we would of necessity have to determine that the actions and procedures in granting and revoking a parole are appropriate subjects for review on habeas corpus.

In State ex rel. McQueen v. Horton, 31 Ala.App. 71, 14 So.2d 557, 560, this court granted a writ of prohibition to prevent the judge to whom the petition for habeas corpus was addressed from examining and reviewing the revocation of a parole. There Judge Rice, speaking for the Court, first determined that the petitioner had not served his complete sentence while on parole, which as noted above is the case here. Continuing, Judge Rice said that a parole was a matter of grace and not a matter of right to a convict, and therefore the actions taken in granting and revoking a parole were not subject to review as being violative of the rights of the convict. The paroling authority having the 'full and complete authority to grant the privilege of a parole to a convict,' and in the same way 'authority to supervise, unhindered and unquestioned, the 'parolee'--and to alter at its will the conditions for the retaking of parole violators, so long as their punishment is not increased.'

Having determined that the sentence of the petitioner has not been served while on parole, we feel that the actions in granting and revoking the parole are not here proper subjects for review on habeas corpus, these matters resting in the discretion of the paroling authority. State v. Horton, supra; Summers v. State, 31 Ala.App. 264, 15 So.2d 500.

Affirmed.

On Rehearing

In his brief on application for rehearing counsel has argued that we erred in our original opinion in two aspects.

Counsel's first argument is that we erred in affirming the judgment from which this appeal is taken in that the record shows that the appellant's first conviction in the Circuit Court, and upon which she was sentenced to 180 days in jail, and from which sentence she was paroled after serving 8 days, was void in that the record shows that the appellant was arraigned in the Circuit Court upon an oral complaint. In this connection the judgment entered by the Circuit Court reads in part as follows:

'This the lst day of April, 1960, came Wm. C. Walker, who prosecutes for the City of Birmingham, and also came the defendant in her own proper person and by attorney, and the defendant being duly arraigned upon the oral Complaint of the City of Birmingham, charging the defendant with the offense designated in the Appeal Bond from the Recorder's Court of the City of Birmingham, Alabama, in this cause, for her plea thereto says that she is guilty as charged in said oral Complaint, and on recommendation of City Attorney Walker, the Court assessed a fine of One Hundred ($100.00) dollars and costs against...