Petitioner was, on July 31, 1920, tried in the Jefferson county court of misdemeanors, on an affidavit dated the same day, charging vagrancy. She was convicted, fined $25, and as additional punishment was sentence to 12 months hard labor for the county. A note is made as a part of the judgment, "An agreement to leave town;" also following the judgment and not a part thereof, "Twelve months suspended pending her good behaviour and passed thirty days." Each 30 days thereafter until and including October 30th the entry was regularly made on the docket of the court, "Passed thirty days." On October 7th alias warrant was issued, and case set October 12th. On November 5th, the case having been passed by regular orders to that time, the court entered an order of commitment for execution of the sentence of July 31, 1920.
By an act of the Legislature approved September 10, 1919 (Acts 1919, p. 121), establishing the Jefferson county court of misdemeanors, jurisdiction was conferred on said court to try and determine certain causes, including the offense with which this defendant stands convicted. Section 20 of said act provides:
"That the court shall be opened at the discretion of the judge of said court any day during the week (except Sunday) for the trial of offenses committed within the jurisdiction of said court, but no person shall be tried on the same day or the next day after his arrest without his consent."
This is not a jurisdictional requirement, but established a rule of practice in the court, which, in the absence of evidence to the contrary, this court will presume was complied with in the trial of the petitioner.
According to the record, then, the defendant stands convicted before a court of competent jurisdiction of the crime of vagrancy, and sentenced to hard labor for the county of Jefferson for the term of 12 months, which in no event, except by pardon, would expire until July 31, 1921. The docket entry suspending the sentence does not appear to be a part of the judgment; nor does it appear to be more than a minute entry, which the Supreme Court and this court have time and again held not to be a sufficient judgment of a court of record. (And the court trying this cause is such a court as provided by section 8 of the act creating it.) Besides, in the act creating the court (section 22), a form of judgment is prescribed, which must be signed by the judge. So that, assuming that the court had the power, under section 23 of the act, or under the general law to suspend the sentence (which is not here decided), it appears that such was not done, and therefore it is not necessary to a decision of this case to pass upon the constitutionality of section 23 of the act. Where this is the case the court will not consider the constitutional question not necessarily involved. Smith v. Speed, 50 Ala. 277; Joiner v. Winston, 68 Ala. 129; Hill v. Tarver, 130 Ala. 592,30 So. 499; Bray v. State, 140 Ala. 172, 37 So. 250.
We have, then, in the case at bar, a valid judgment of conviction against the defendant which includes a sentence to hard labor, which sentence began on the day of the rendition judgment, to wit, July 31, 1920 (Scottsboro v. Johnston,121 Ala. 397, 25 So. 809), but no part of which has been served. Under the Johnston Case, supra, it would seem that in any event the termination of the sentence would be one year from July 31, 1920. The question then presented here is whether or not the petitioner could be taken into custody by the authorities and compelled to served the unexpired part of the sentence after he had been let to go by the court rendering the judgment. This particular question does not appear to have been decided by the Supreme Court of the state, but in other jurisdictions the decisions are in hopeless conflict. But this court, in the case of Daley v. City of Decatur, 90 So. 69,1 has placed itself in line with those states, holding that, in such a case as the one at bar, the trial court has lost jurisdiction, and hence the petitioner is entitled to her discharge.
It follows that the trial judge erred in denying the petitioner the relief prayed. The judgment is reversed, and a judgment will here be entered discharging petitioner.
1 Ante, p. 141.
On Rehearing.