Ex parte Byrd , 172 Ala. 179 ( 1911 )

SIMPSON, J.

This is a. petition for a mandamus to the judge of the circuit court to show cause why he should not permit James S. Gardner to he released from custody on executing a bail bond.

The petition alleges that said Gardner was convicted of the offense of obtaining money under false pretenses, at the fall term, 1910, of the circuit court, and sentenced to a term of four years in the penitentiary; that said Gardner gave notice of an appeal to this court, whereupon the sentence was suspended, and the court fixed the amount of bail at $1,000; and that, after the adjournment of said court, the judge thereof refused to allow said defendant to be released on bond, and so instructed the sheriff.

The respondent, waiving service, answers, admitting the facts set forth in the petition, except that he denies that the order setting aside the order for bail was made by the judge: and states that it was made by the court, and not by the judge.

Chapter 162 of the Code of 1907, treats of “Appeal and Writ of Error.” Article 1 of said chapter treats of “Appeal,” and article 2 of “Writ of Errors.” Section 6249 of article 1 provides that “when any question' of law is reserved in case of felony and it shall be made known to the court that the defendant desires to take an appeal to the Supreme Court, judgment must be rendered against the defendant, but the execution thereof mnst be suspended pending the appeal and the defendant held in custody,” etc.; and section 6250, in the same article, provides for admitting to bail defendants convicted of a misdemeanor, and there is no section in said article 1 providing for bail in case of a conviction for felony. S'ection 6262, in article 2, originally provided for bail only in cases of conviction for a misdemeanor, but by act approved August 24, 1909, said section was amended so as to allow bail in all cases where the imprisomnent does not exceed five years, and directs that “the jndge or court must also direct the clerk of the court in which conviction was had to admit the defendant to bail,” etc. Acts 1909, p. 62.

It is evident that the “judge or court” mentioned refers to the Supreme judge or court issuing the writ of error.

This section, as amended, stands in the article just as if it had been originally so worded, and remains still a part of the article in regard to writ of error, having no application to a case in which an appeal has been taken.

The title at the beginning of each section is not a part of the section, and the mere title being changed cannot affect the divorcement of the section from the article in which it is included, especially while article one has a section unrepealed, providing distinctly to whom bail shall be granted in case of appeal. In the case of State ex rel. Reynolds v. Weaver, 167 Ala. 672, 52 South. 638, this court properly held that the defendant, having been sentenced to imprisonment for 15 years, was not entitled to bail, which he would not have been under either section. The court did not pass upon the propositions involved in this case.

The writ of mandamus is denied.

Dowdell, C. J.,- and Mayfield, Sayre, and Somerville, JJ., concur.