The defendant was convicted on a charge of petit larceny and given a sentence of ten days as a punishment for the crime and forty days additional to pay the costs. This judgment was entered January 2, 1933, and suspended on that day and the defendant placed on probation, with a requirement that he report to the judge every other Saturday morning. On October 1, 1934, the defendant was hailed into court and resentenced for the term of the original sentence and to an additional term for having violated the terms of the probation. What the terms of the probation were does not appear and for that matter is of no moment in this appeal.
The power of the court to act in this matter depends upon the validity of an act of the Legislature approved September 28, 1932. This court being unanimous in the opinion that the above act was and is void, for reasons hereinafter appearing, propounded to the Supreme Court the following inquiry:
"To Honorable John C. Anderson, C. J., and Associate Justices:
"The Legislature of Alabama, at its session in 1932, passed the following act:
" 'Be It Enacted by the Legislature of Alabama:
" 'That Section One of an act entitled "An Act to provide for the suspension of imposition or execution of sentences and the placing of defendant upon probation; and to prescribe and give power to the State Courts to suspend imposition or execution of sentences and to place defendant upon probation and to give said Courts power of revocation and modification of probation; and to prescribe the duties of probationers," Passed July 14, 1931, be amended so as to read as follows:
" 'Section 1. The Several Courts of the State having original jurisdiction of criminal actions when it shall appear to the satisfaction of the Court trying the case or his successor in office that the ends of justice and the best interest of the public as well as the defendant, will be subserved thereby, shall have power after conviction or after a plea of guilty or nolo contendere for any crime or offense in all cases when the punishment is fixed by a judge or jury at not more than ten years in the penitentiary and in all cases where the defendant is sentenced to hard labor for the County to suspend the imposition or execution of sentence and to place the defendant upon probation for such period and upon such terms and conditions as they may deem best; or the Court may impose a fine and may also place the defendant upon probation in the manner aforesaid. The Court may revoke or modify any condition of probation or may change the period of probation. The period of probation together with any extension thereof shall not exceed five years. All modifications or extensions of the period of probation as granted hereunder to be made by the Judge of the Court where sentence was imposed.
" 'Approved September 28, 1932.' Acts Extra Session 1932, p. 54. *Page 335
"In the opinion of this court this act violates section 43 of the Constitution of 1901, for the following reasons:
"The Constitution of 1901, § 124, places in the hands of the Governor the power to grant reprieves and paroles, commutation of sentences and pardons. This power rests exclusively in the Chief Executive and any effort on the part of the Legislature to place such power elsewhere is an encroachment upon the prerogative of the Governor. The vicious tendencies of such legislation was pointed out by this court in Vinson v. State,16 Ala. App. 536, 79 So. 316, 317.
"When the above act is considered in connection with its companion act (Acts 1931, p. 443, § 2), wherein it is provided: 'At any time after the probation period, but within the maximum period for which the defendant might originally have been sentenced, the Court may issue a warrant and cause the defendant to be arrested and brought before the Court. Thereupon the Court may revoke the probation or the suspension of sentence, and may impose any sentence which might originally have been imposed,' it will be seen to be a thinly veiled effort under the guise of a suspension of sentence to permit each trial judge in the state to grant paroles and commutation of sentences after judgment and sentence, which can only be done by the pardoning powers."
"The suspension of sentences provided for in the foregoing act is entirely foreign to the inherent power of courts to suspend sentences as was pointed out by us in Vinson's Case, supra, in which opinion we said: 'To make the execution of the sentences of parties convicted of crime dependent upon their future good behavior, which good behavior could be alone determined by the judges fixing the sentences, would be not only an encroachment upon the powers of the Governor as fixed by the Constitution, but would be to set up a government of men and not of laws,' in direct opposition to the expressed genius of our constitutions.
"For the foregoing reasons as well as others that might be suggested, this court is of the opinion that the act above cited is in violation of the Constitution of 1901, § 43, and is therefore void.
"The question is respectfully referred to the Supreme Court under authority of Code 1923, § 7322."
To which inquiry is the following response:
"Response as Certified Question by the Court of Appeals of Alabama.
"To the Honorable Court of Appeals of Alabama: