On October 12, 1903, a regular term of the circuit court of Elmore *Page 678 county was begun and held. This was not at the time fixed by law for the regular fall term of that court. The law provided for it to begin "on 9th Monday after fourth Monday in August (in the year 1903, this was October 26th), and may continue two weeks." Acts 1903, pp. 181, 182, approved March 5, 1903. On October 14, 1903, the presiding judge ordered "an adjourned or special term of said court to be held on Monday the 16th day of November, 1903." In the entry on the minutes the judge prescribed the order in which the unfinished business will be transacted. Then the following order was made:
"The business of the court being disposed of, the court now stands adjourned until Monday the 16th day of November, 1903."
Thus it affirmatively appears from the record that the court held on the 16th day of November, 1903, was an adjourned term of the regular term in October, 1903, and not a special term of court. This regular term of the circuit court having been held at a time not authorized by law, it was illegal, and its proceedings are void. Kidd v. Burke, 142 Ala. 625, 38 So. 241; Ex parte Branch, 63 Ala. 383.
The Court of Appeals, 88 So. 61,1 in its opinion in this case, correctly and clearly says:
"There having been no legal term of the circuit court of Elmore county in session on October 14, 1903, there could be no adjourned term of that session."
The adjourned term was illegal.
The indictment in this case was found by a grand jury at the adjourned term of the circuit court of Elmore county in November, 1903, under the void order for the adjourned term made at the illegal regular term on October 14, 1903. The indictment is therefore a nullity. Davis v. State, 46 Ala. 80; Kidd v. Burke, 142 Ala. 625, 38 So. 241; Garlick v. Dunn,42 Ala. 404.
The defendant was tried and convicted under this indictment at the spring term, 1904, in the circuit court of Elmore county, at a time fixed by a general act of Alabama (Acts 1903, p. 488, approved October 13, 1903). This act was declared unconstitutional. State ex rel. Atty. Gen. v. Sayre, 142 Ala. 641,39 So. 240, 4 Ann. Cas. 656. So this court was held at a time not authorized by law. The defendant was tried, convicted, and sentenced under a void indictment, at a term of court held at a time not authorized by law; and his conviction and sentence were therefore null and void. State ex rel., etc., v. Sayre, 142 Ala. 641, 39 So. 240; Kidd v. Burke, 142 Ala. 625,38 So. 241; Davis v. State, 46 Ala. 80.
The defendant, petitioner in this proceedings, is now in the penitentiary of this state, serving a life sentence under a void indictment, void trial, void conviction, and void sentence. He has been there since 1904. He asks by his petition for writ of habeas corpus to be discharged. The court below granted the petition. This was approved by the Court of Appeals. We find no error therein.
This was an adjourned and not a special term of court, as shown by the record, when the defendant was indicted. Hence there is no necessity for us to approve or disapprove of what the opinion of the Court of Appeals declares the record should show to have a valid special term of court.
The motion for rehearing, on application of the state for writ of certiorari to the Court of Appeals, is overruled.
ANDERSON, C. J., and GARDNER and THOMAS, JJ., concur.
1 17 Ala. App. 656.