Ex parte Goucher , 103 Ala. 305 ( 1893 )

COLEMAN, J.

On the 27th of March, 1894, the petitioner was ’ tried and convicted of manslaughter in the first degree ; and sentenced to hai’d labor for the county for twelve months. Whether the sentence was authorized by the verdict of the jury, we will not now consider.

On the 16th of April following, the petitioner applied to the judge of the circuit court for the writ of habeas corpus which was denied. The grounds of the refusal of the writ of habeas corpus, as shown by the judgment thereon, are that petitioner applied for and obtained an order, at the time of his conviction, granting him thirty days within which to “prepare a bill of exceptions for an appeal to the supreme court, and the thirty days have not expired by thirteen days.”

The facts stated in the petition for the writ are admitted to be true. Without undertaking to state them in detail or fully, it appears that petitioner was in the custody of the sheriff, and had not been delivered to the superintendent of hard'labor for Dale county, or the person designated as the proper pex’son to whom convicts should be delivered when sentenced to hard labor for the county. It also appeared that the contract for the hire of convicts for Dale county expired on the 1st day of April, 1894, and since that time, no order, contract or provision for the disposition of convicts had been made by the court of county commissioners. The trial of the petitioner, verdict of the jury, and sentence of the law pronounced by the court upon the verdict of the jury are made an exhibit to the petition. These show that no question of law which should appear of record was reserved by the petitioner during his trial. No bill of exceptions had been prepared and signed by the court. The court made no order, by which the execution of the sentence of the law was suspended. — Code, §§ 4511,4508, 4510. The sentence of the law went into immediate operation, and should have been executed according to its mandate. This question was fully considered and settled in the case of Ex parte Knight, 61 Ala. 482. If the court had made an order suspending the execution of the sentence, we would have for consideration a diffex’ent question. When a party has been sentenced to hai’d labor for the county, or to suffer imprisonment ixi the pexxitentiaxy, a shexiff must xiot detain the convict, for an unreasonable length of time in the county jail. Any unreasonable detention, entitles the prisoner to be discharged, by reason of a “subsequent act-, omission, or event.” — Ex parte King, 82 Ala. 59 ; Ex parte Crews, 78 Ala.457.

According to the record there was no proper person to receive convicts, sentenced to hard labor for Dale county. Certainly this neglect or omission of duty by the court of county commissioners would not authorize the sheriff to detain the convict unreasonably in the county jail.— Ex parte Crews, supra; Herrington v. The State, 87 Ala. 1, 3 ; Kirby v. The State, 62 Ala. 51.

The form of the verdict returned by the jury and the authority of the court to render sentence upon such verdict, was not made a ground for the writ of habeas corpus. The verdict is as follows : “We the jury find the defendant guilty of manslaughter in the first degree, and further find that he be imprisoned in the penitentiary for the period of one year.” The jury have no authority to render such a verdict, and the court ought not to have received it, until corrected. The law does not authorize imprisonment in the penitentiary for a period of one year or less. — Code, § 4492.

The sentence of the court was to hard labor for the county, which was proper, but the sentence of the law to stand must be supported by a'legal verdict. The record shows reversible error available by appeal or writ of error. We need not say whether the judgment was absolutely void or merely irregular and not available on the collateral proceeding by the writ of habeas corpus. See Ex parte McKivett, 55 Ala. 236 ; Kirby v. The State, 62 Ala. 51; Ex parte Simmons, Ib., 416; Zaner v. The State, 90 Ala. 651; Gunter v. The State, 83 Ala. 96; Dover v. The State, 75 Ala. 40 ; Cobia v. The State, 16 Ala. 781; Allen v. The State, 52 Ala. 391; Pollard et al v. Amer. Freehold Ld. Mortgage Co., supra, p. 289.

It being admitted that the facts stated in the petition were true, the prisoner was entitled to his discharge. The writ of habeas corpus will be accorded by this court, unless the petitioner, being advised, is content to renew his application before a court-'or judge of primary jurisdiction.

Application granted.