Ex parte Stewart , 98 Ala. 66 ( 1893 )

HEAD, J.

Petitioner was convicted of forgery at tbe spring term, 1893, of tbe Circuit Court of Marengo county, and sentenced to perform bard labor for tbe county for a period of two years, and an additional term to cover costs, as provided by tbe statute. Tbis sentence was on March 24th, 1893. Under tbe bard labor system adopted by the Court of County Commissioners, according to law, tbe Sloss Iron and Steel Company, a mining and manufacturing corporation of Jefferson county, Alabama, bad hired, and were obliged by their contract with tbe county, to receive from tbe sheriff, on conviction and sentence, and put to bard labor, all persons convicted and sentenced to bard labor for tbe county, during tbe term covered by tbe contract, “except those who are physically incapable of performing bard labor.” Tbis contract was in force when petitioner was. convicted and sentenced, and is still. By law, it is made tbe duty of tbe Commissioners Court to provide for tbe disposition of convicts sentenced to bard labor. It does not appear from tbis record that they have made any provision for persons who are physically incapable of performing bard labor. On March 25th, 1893, tbe Governor, by an order to. tbe sheriff, suspended tbe delivery of convicts to said Sloss Iron and Steel Company until an epidemic at their mines could be investigated. Afterwards, (but when does not appear, as tbe sheriff contents himself with leaving tbe date blank in bis return) tbis order of tbe Governor was revoked, and tbe sheriff ordered to deliver tbe convicts; and thereupon all were delivered, except petitioner whom the company refused to receive, when offered to it, because, “she bad an infant at tbe breast,” and that “they bad hired no babies.” Neither tbe sheriff, the- Commissioners Court, nor any one else, so far as tbe record shows, took any steps to compel the Sloss Company to receive petitioner, nor is it made to. appear that when tbe application for tbe writ of habeas corpus was exhibited they bad any purpose to do so and that further time was necessary to effectuate that purpose. Nor, as we have said, bad any steps been taken, or purpose to do so made known, as to tbe disposition of convicts who were physically incapable of performing bard labor; but tbe sheriff retained tbe petitioner in bis custody, confining her in the county jail, under these indeterminate circumstances which did not and could not point to, or anticipate, the end of such confinement, short of the entire term of hard labor which had been imposed. In this condition of things, petitioner asked the probate judge to be discharged by the writ of habeas corpus. He tried the case on the merits and refused the prayer, remanding the petitioner to the custody of the sheriff; and she now renews the application to this court.

The probate judge seems to have acted upon a statement deposed to by the sheriff that he was authorized to receive convicts for the Sloss Iron & Steel Company; and to have reached the conclusion that his, the sheriff’s, custody of petitioner should be referred to that agency. This position is not sound. The sheriff was by law charged with the custody of petitioner, and it was his duty to hold her after sentence, until the hirer had reasonable opportunity to take her away and put her to the performance of hard labor according to law and the sentence. He had no right to continue her custody and confinement in the county jail for an unreasonable or indefinite time, and say he was holding her as agent of the hirer, and not as sheriff. Moreover, the Sloss Iron and Steel Co. had absolutely repudiated all authority or control over the convict by refusing to receive her, on the ground that she was not included in its contract. How then can it be said that it had custody of her, by its agent, the sheriff? But, if this were not true, and if he were holding her as agent of the hirer, the detention was equally wrongful. The hirer had no authority to keep the convict confined in the county jail. It could not substitrfte therefor another and different punishment,.to-wit, imprisonment in the county jail.—Kirby v. State, 62 Ala. 51; Ex parte Crews, 78 Ala. 457. There is no doubt, under the facts shown by this record, that petitioner is entitled to her discharge, and the writ of habeas corpus will issue as prayed, unless, upon being certified of this opinion, she shall be content to renew her application before a judge of original jurisdiction.

Habeas corpus granted.