Ex parte King

Ex parte King. Application for discharge from custody on Habeas Corpus'. 1. Discharge of convict from custody, on account of undue delay in execution of sentence to har'd labor —When a convict, having been sentenced to hard labor for the county, is detained in custody by the sheriff for an unreasonable time afterwards, not having entered a motion for a new trial, nor any other proceeding involving delay, he is entitled to be discharged from custody, notwithstanding the continued session of the court; but this court can not judicially know, in the absence of any showing as to the particular facts of the case, that a detention for six days is unreasonable. Application by petition by Philip King, for a writ of habeas corpus to procure his discharge from the custody of the jailer of Montgomery, under a sentence to bard labor for the county, on account of undue delay in the execution of the sentence. It appears from the petition, with the accompanying exhibits, that the petitioner was prosecuted in the County Court of Montgomery for “ trespass to realty,” was duly convicted, and sentenced to hard labor for the county for thirty days, and to an additional term of one hundred c[ays on non-payment of the costs ; that this judgment was rendered on the 12th July, 1887; that on the evening of July 18th, he made application to Bon. Thos M. Arrington, the judge of the City Court of Montgomery, for a discharge from custody on habeas corpus, on account of the non-execution of the sentence; that, on hearing the evidence, the said judge refused to discharge him ; that the petitioner duly excepted to this ruling, and now makes it an exhibit to this application to this court. The bill of exceptions further states that, on the hearing, “ it appeared that the County Court, at which said judgment was rendered, was still in session, being adjourned from day to day, and would adjourn sine die on the Saturday preceding the second Monday in August, at which time the next term of the court would begin.” A. P. Agee, for the petitioner, cited Kirby v. State, 62 Ala. 51; Ex parte Crews, 78 Ala. 457; People v. Warden, 66 New York, 453. [MAJORITY — CLOPTON, J.] CLOPTON, J. — It is settled, that when a convict is sentenced to hard labor for the county, and a reasonable time for the execution of the sentence has passed, his further detention and imprisonment in the county jail is unauthorized and illegal; and though his imprisonment was at first lawful, being necessary to secure his presence for the execution of the sentence, he becomes entitled “ to his discharge by reason of a subsequent act, omission, or event.” But, in all cases, a reasonable time must necessarily be allowed for his delivery to the proper authority of the county to receive him. In the meautime, it is the duty of the sheriff to keep him safely in his custody. What is a reasonable time, depends on the circumstances of each case. — Kirby v. State, 62 Ala. 51. The petitioner was convicted and sentenced to hard labor for the county, July 12, 1887; and six days thereafter he applied to the judge of the City Court of Montgomery to be discharged, on the ground that the sheriff detains him in custody. There are cases, in which it is patent that an unreasonable time has elapsed without execution of the sentence to hard labor, during which the convict is imprisoned by the sheriff, where confinement in the county jail ceases to be security for his presence, and becomes an illegal punishment. But we do not judicially know, and no circumstances are disclosed showing, that in this case a period of six days is an unreasonable time. We do not mean to intimate, that the mere continuance of the term of the court "would excuse a postponement of the execution of the sentence, unless by a motion for’a new trial, or other appropriate proceeding, the defendant renders its suspension proper. It would often be a great hardship, as in this case, to delay the execution of the sentence until after the .adjournment of the term of the court, which, as appears from the record, will continue until about the middle of August. The sheriff should deliver the convict to the proper authority of the county, after sentence has been passed, as soon as he can reasonably do so, consistently with the discharge of his duties, consequent to his attendance upon the court. Habeas corpus denied.