On application for rehearing, the court has reached the conclusion that it was in error in holding on the *Page 248 original submission that the trial court had lost jurisdiction and control as to the judgment of conviction.
The court fell into error by considering the minute entry suspending the sentence as not being a part of the original judgment of the court, and in treating it as a mere docket entry without the force and effect of a judgment. This entry appears just below the signature of the judge, and is as follows: "12 months suspended pending her good behaviour and passed 30 days." On a more careful inspection and consideration of the transcript of the record in this case, the court is now convinced that the above-quoted entry was intended to be and was a part of the original judgment entry. That it was made at the same time or contemporaneous with the entry of the original judgment, and was therefore a part of it. If the judge's signature had appeared just below the entry instead of just above, as it does, there could be no doubt that the above-quoted entry was a part of the original judgment, and not a subsequent memorandum or docket entry. The following authority supports this holding of the court in treating the above-quoted entry as a part of the original judgment entry, and not a mere subsequent memorandum on the docket: Aline Clisby v. State, 17 Ala. App. 475, 86 So. 140.
The judgment was therefore kept under the jurisdiction and control of the court by virtue of the original judgment entry, and by the subsequent orders of continuance as appear upon the record. The trial court therefore had the power to alter or amend the judgment or the order as to sentence at any time between the original date of sentence, and when the trial judge ordered and directed that the sentence be executed. This being true, the circuit court ruled correctly in denying the petitioner her writ of habeas corpus and in committing her back to the custody of the officers and agencies of the law to execute the sentence in accordance with the judgment and orders of the court.
Moreover, it is not disputed, and was decided on the original hearing in this case, that this "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." Under the very terms of that judgment the sentence of hard labor will not expire until the 31st day of July, 1921. Hence, if the entry which we quoted above was not a part of the original judgment, but was void, still there would be a valid judgment and sentence, and terms of which had not expired when the alias warrant was issued on October 12, or no November 5, When the court entered another order directing the execution of the original sentence of July 31, 1920.
This court and the Supreme Court have repeatedly refused to discharge defendants and prisoners from custody where there was a valid judgment but an irregular or void sentence; and in such cased they reversed the case back to judgment, with directions to the trial court to enter proper orders of sentence. See Ex parte Smith, 1 Ala. App. 535, 56 So. 247; Haley's Case,1 Ala. App. 533, 56 So. 245; Ossie v. State, 147 Ala. 152,41 So. 945; Ex parte State, 76 Ala. 482.
This case is distinguished from the case of Daley v. City of Decatur, 90 So. 69,2 and the case of Scottsboro v. Johnston,121 Ala. 397, 25 So. 809, cited in the opinion on the original hearing, for the reason that in those cases the trial court had no statutory or common-law right or power to either suspend the imposition or the execution of the sentence, and hence the acts, orders, or quasi judgments of the court in those cases were tantamount to a discharge of the defendant or prisoner from custody; and hence there was no order, judgment, or sentence of any court of competent jurisdiction in those cases which authorized the detention and custody of the prisoner at the time of bringing of the habeas corpus.
In this case the court of misdemeanors for Jefferson county is given express statutory authority to suspend the execution of sentence, just as are the circuit courts of this state by virtue of sections 7628, 7632, 7639, and 7653 of the Code. Consequently the trial court had express authority to suspend the sentence at the time of the rendition of the judgment and to make it a part of the judgment entry and to keep the judgment within the control of the court until the next term of the court as was done in this case. This court, as well as the Supreme Court, has held that section 7628 of Code 1907 was not unconstitutional; that it did not attempt to authorize the court to absolutely or indefinitely suspend the execution of a sentence to such an extent or in such manner as to be an invasion of the executive power of the government in which alone the Constitution vests the power to pardon and reprieve. Circuit courts have always exercised just such power as is conferred on this court by the statute of this state which created the court; and the statute also expressly confers on the court of misdemeanors for Jefferson county the powers of the circuit court as to such matters.
There is a great distinction between the power of the court to suspend absolutely and indefinitely a sentence from the power to temporarily or conditionally suspend the execution, or to keep the judgment or sentence within the control of the court for the time and in the manner provided by law. This court expressly decided in the case of Vinson v. State, 16 Ala. App. 536,79 So. 316. that section 7628 of Code 1907 was not unconstitutional, *Page 249 and not an invasion of the pardoning power.
Section 23 of the act creating this court (Local Acts 1919, p. 128) expressly authorizes the trial court to suspend the execution of sentence conditionally, and temporarily, and we find no order or judgment of the court that was not authorized by this statute. It therefore follows that the application for rehearing must be granted, that the judgment of reversal be set aside, and a judgment of affirmance entered.
Application granted.
Affirmed.
2 Ante, p. 141.