Ex parte Crews , 12 Ala. App. 300 ( 1915 )

THOMAS, J.

This is an appeal by the state from an order of the judge of the Tuscaloosa city court, entered on November 14, 1914, and discharging on writ of habeas corpus the petitioner, Porter Orews, from confinement in the penitentiary, to which he had been lawfully sentenced by the circuit court of Dale county for a term of three years upon his conviction in that court, on July 28, 1911, of the offense of an assault with intent to murder — a felony under the statute (Code, § 6309).

The basis on which the petitioner claimed his right to a discharge, and the theory upon which the judge acted in granting it, was that the petitioner was entitled under the law to have deducted from his sentence the time during which he was out on bail after his conviction in the said circuit court of Dale county and pending his appeal from that conviction to the Supreme Court. If this time is to be, deduced, to wit, from July 28, 1911, when the petitioner was so convicted, to' January 15, 1913, after his case on appeal was finally disposed of by the Supreme Court by a dismissal there, and when his service in the penitentiary actually commenced, then clearly his said sentence of three years had expired at the time he filed his petition for habeas corpus on September 25, 1914, and he was therefore entitled to be released from the imprisonment. On the contrary, if such time while he was out on bail is not to be deducted, then the term of the sentence had not ex-, pired, and will not expire for some time yet to come, and there was consequently no authority of law for granting the order of discharge.—Weinard v. State, 149 Ala. 59, 42 South. 991.

In the allegations of the petition for the Avrit of ha-beas corpus, and in the agreed statement of facts upon which such application was heard and determined, it appears that, although the prisoner on his said trial in the said circuit court of Dale county reserved for the decision of the Supreme Court questions of laAv, and upon his said conviction in said circuit court on said July 29, 1911, then duly prayed an appeal to the Supreme Court and then, in order to secure his release pending such appeal, duly executed and delivered to the sheriff’a bail bond in an amount and conditioned in all respects as required by law, yet it further appears that the lower court wholly failed to make or have entered any order suspending the execution of its sentence pending such appeal.

This latter fact — the failure of the court to make and have entered an order suspending the sentence — is the sole foundation for the petitioner’s contention that the time he was so out on bail should be treated as if he were actually serving the sentence, and should therefore be deducted therefrom in computing and arriving at a determination of the time when that sentence expires. In support of this contention Ave are cited to the case of White v. State, 134 Ala. 197, 32 South. 320, followed in Viberg v. State, 138 Ala. 100, 35 South. 53, 100 Am. St. Rep. 22, Avhich, in construing section 4318 of the Code of 1896, now section 6249 of the present Code (1907), held that an appeal did not ipso facto suspend the sentence, but that it was necessary to that end that an order of suspension be actually made by the lower court and entered upon its minutes.

At the time that decision was rendered, however, our statutes did not in any case, as appears from reading the section of the Code cited, though they do now where the sentence is for five years or less (Acts 1911, pp. 113, 626), authorize the release on bail, pending an appeal to the Supreme Court, of a person that had been convicted of a felony; but at that time only persons convicted of misdemeanors were allowed bail pending such appeal. — Code 1896, § 4319; Code 1907, § 6250. Subsequent to said decision, and prior to the conviction in this case, which, as said ivas for a felony, said section 4318 of the Code of 1896, construed in said decision, became section 6249 of the present Code, and the latter had been expressly amended by an act approved March 11, 1911. Before such amendment the section, as it was construed in said decision, read as follows: “When any question of law is reserved in case of a 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 must be suspended pending the appeal, and the defendant held in custody.” — Code, § 6249.

Consequently, .the Supreme Court very properly held in the case cited that an appeal alone did not suspend the sentence, but that an order of court was, in connection with the appeal, essential to such a suspension in a felony case.—White v. State, sioprco. The amendment by the act mentioned wrought a change in this statute by adding immediately after the last words of the section as above quoted the following additional words:

“Provided, that if the sentence is for a term not exceeding five years tbe judge must direct tbe clerk of tbe court in which tbe conviction is bad to admit tbe defendant to bail, in a sum to be fixed by tbe judge, with sufficient surety, conditioned upon bis appearance at tbe next term of tbe court and from term to term thereafter, to- abide sucb judgment as may be rendered on tbe ap peal.” — Gen. Acts 1911, p. 113.

This amendatory act was approved, as said, on March 11, 1911; and later, to wit, on April 22, 1911, another act — an original statute on tbe same subject — was also approved, wbicb reads as follows: “That in all felony cases where tbe defendant is sentenced to tbe penitentiary for a period of five years or less and an appeal i$ taken, pending sucb appeal tbe defendant shall be entitled to bail in sucb sum as may be prescribed by tbe court as sufficient surety, conditioned for bis appearance at tbe next term of tbe court in wbicb the conviction was bad, and from time to time thereafter, to abide sucb judgment as may be rendered on tbe appeal.”— Acts 1911, p. 626.

And we may add, par parenthesis, also that by an act approved August 24, 1909, tbe Legislature likewise amended, in similar purport, section 6262 of tbe Code of 1907, so as to provide that when a defendant, convicted of any offense, whether ’misdemeanor or felony, where tbe sentence does not exceed five years, seeks by writ of error a review of tbe judgment of conviction, be shall also be entitled to bail pending tbe bearing. — Acts Sp. Sess. 1909, p. 62.

It is plain that tbe object of these several legislative enactments was to so amend existing law, wbicb up to :sucb time allowed bail after conviction only in misdemeanor cases when tbe defendant either appealed (as provided in sections 6243 and 6250 of tbe Code of 1907) or carried bis case up to tbe higher court-by writ of error (as provided in sections 6258 and 6262 of the Code of 1907), so as to allow the same right to a defendant convicted of a felony, where the sentence was for five years or less, whether he appealed under section 6243 or secured a writ of error under section 6258.

While, even since these amendments, it would seem that, where a defendant convicted of a felony, and receiving a sentence not exceeding five years, appeals or obtains a writ of error to review the judgment, hut fails to avail himself of the privilege allowed by the law, and declines to make bail, and thereby to obtain his release from custody pending the hearing on such appeal or writ of error, it would probably be necessary to a suspension of the sentence that the court enter an order to that end (White v. State, supra); yet, where a defendant, as here, does avail himself of that privelege, and does make bond, and does secure his release from custody, such, we are clearly of opinion, does operate to suspend the execution of his sentence, at least to-such an extent that he is not entitled to have such time that he is so out on bail credited on his term of imprisonment.—Ex parte Jones, 41 Cal. 209; Ex parte Green, 86 Cal. 427, 25 Pac. 21; Com. v. Spencer, 9 Kulp. (Pa.) 159; State v. Grottkau, 73 Wis. 589, 41 N. W. 80, 1063, 9 Am. St. Rep. 816.

By force of the last statute passed on the subject (Gen. Acts 1911, p. 626, cited), it would seem that, when the court fixes the amount of bail, as the law therein requires him to do, and the defendant executes bail in that amount, with sureties satisfactory to the sheriff, he is lawfully entitled to be released from the custody of the sheriff pending the appeal, even though no order suspending the sentence be made or entered by the court; and, if so, it must follow that the giving of the bail, 'when the amount has been so fixed by tbe court, operates, in connection witb tbe appeal, to lawfully suspend tbe sentence pending tbe appeal; but, however this may be, and even if we concede that tbe sheriff bad no authority to release tbe petitioner on bis giving tbe prescribed bail until tbe court first made and entered an order suspending tbe sentence (Evans v. State, 63 Ala. 195), and that, therefore, tbe sheriff was guilty of an escape in letting tbe petitioner at large upon such bail, yet it does not follow that tbe petitioner is entitled to have such period that be was so at large credited upon bis sentence; and this because tbe prisoner, having been unlawfully released by consent of tbe sheriff, was himself an escape (Code, § 6869; 11 Am. & Eng. Ency. Law [2d Ed.] 327).

However treated, therefore, whether tbe petitioner lawfully or unlawfully procured bis release from con: finement, be actually and in fact accomplished a suspension of bis sentence during the time be was so out on bail, and, having done so, be is in no' position to complain of a failure of tbe court to make and enter tbe order authorizing such suspension.

It follows that the order and judgment appealed from discharging the petitioner must be reversed, and the application of the prisoner must be denied, and the prisoner remanded to the custody of the proper authorities to serve out his sentence in accordance with the holdings herein expressed.

Reversed and rendered.