Opinion
6 Div. 730.
January 15, 1935. Rehearing Denied February 5, 1935.
Original petition of Joe Nasser for mandamus to J. Russell McElroy, as Judge of the Circuit Court, Jefferson County.
Petition denied and dismissed.
James Esdale and John T. Batten, both of Birmingham, for petitioner.
The suspended sentence was void. The Act of 1933, p. 75, is unconstitutional and void. Barrett v. State, 18 Ala. App. 246, 90 So. 13; Snyder v. State, 18 Ala. App. 188, 90 So. 40; Daley v. Decatur, 18 Ala. App. 141, 90 So. 69; Vinson v. State, 16 Ala. App. 536, 79 So. 316; Const. 1901, § 43; Code Ala. 1928, §§ 1397 (83), 3333, 1934; Acts 1927, p. 379. One confined to jail under whatever process may petition for bail independently of habeas corpus statutes. Ex parte Ousley, 22 Ala. App. 619, 118 So. 675.
W. J. Wynn and Ralph E. Parker, both of Birmingham, for respondent.
The order to execute the suspended sentence is not appealable. Gen. Acts 1923, p. 75; Renado v. Lummus, 205 Mass. 155, 91 N.E. 144; Marino v. Hibbard, 243 Mass. 90, 137 N.E. 369. If the statute allowed an appeal, petitioner has waived the right. Renado v. Lummus, supra. The constitutionality vel non of the statute is not a proper issue in this proceeding. A court may lawfully suspend the execution of a sentence temporarily and conditionally. Barrett v. State, 18 Ala. App. 246, 90 So. 13.
We are at the conclusion that this petition must be denied and dismissed.
Petitioner pleaded guilty, on June 7, 1933, to the offense of violating one of the ordinances of the city of Birmingham, Ala., a city in "a county having a population of three hundred thousand or more." He received a sentence to serve imprisonment at hard labor, the execution of which was suspended, under and by virtue of the terms of the act of the Legislature approved March 20, 1933 (Gen. Acts Ala. Extra Sess. 1933, p. 75), by regular orders made under the provisions of said act, to the date of December 14, 1934.
However, on November 16, 1934, said sentence was, by the respondent, the "judge by * * * whom such (the) court acted in imposing such sentence," ordered put into execution.
It is in effort by petitioner to appeal from such last-named order, that we are asked to issue the writ of mandamus commanding the said trial judge to fix the amount of an "appeal bond," and to release the petitioner, upon the due execution thereof, pending the determination of his desired appeal.
Petitioner argues vigorously that the act of the Legislature hereinabove cited is unconstitutional and void.
Well, if so, the order from which he seeks to appeal is void, and would support no appeal.
If the act is valid, it would seem beyond question that respondent was justified in the action taken — and petitioner at the end of the legal remedies provided in such cases.
In either event, it seems to us, and we hold, that the present petition must be denied, and it is so ordered.
Petition denied, and dismissed.