This is an appeal from the judgment of the city court of Montgomery in a habeas corpus proceeding. The record shows that the appellant (petitioner) was convicted in the criminal court of Jefferson county, May 7, 1904, of the offense of murder in the second degree, and. sentenced to be imprisoned in the penitentiary for 30 years. Said judgment was affirmed by this court on January 9, 1905; but on February 14, 1905, on a rehearing, the judgment of conviction was reversed and the cause remanded. However, when the judgment of conviction was affirmed, the appellant was sent to the penitentiary, and was still in the charge of the convict department, when the writ of habeas corpus was sued out on December 23, 1905. In the meantime one entire term of the criminal court of Jefferson count had passed; the cause being on the docket, but the record showing no continuance, or .other order in relation to the case. On the second term of said court, to-wit, the September term, 1905, an order ivas made in said case, in said court, adjudging a forfeiture against said-petitioner, and an alias capias ordered to be issued against him. Petitioner claims that he is entitled to be released from confinement, and invokes, first, the principles announced in cases where prisoners have been discharged on-account of unreasonable delay in carrying out the sentence of the law; and, second, the principles on the subject of discontinuances, by which it is claimed that the facts recited show a discontinuance of the case in the criminal court'of Jefferson county.
Upon the first proposition this court has gone over all of the cases upon the subject, and has held that the reason why discharges were granted in previous "cases was that, not only there had been unreasonable delay in carrying out the sentence of the law, but also no suitable provision had been made for carrying out the sentence at .all. The court accordingly held that, although the prisoner be in the custody of some officer who. is not entitled to hold him, yet, where there is a person or of-' ficer who is entitled to the custody of the prisoner under the sentence, “he will not, be discharged absolutely, but will be discharged from the custody of the person holding Mm, and committed to the lawful custody” of the *56officer or party wlio is entitled to hold him. — White v. States, 134 Ala. 197, 207, 209, 32 South. 320. From the principles decided in this case, and the cases cited, the order of the judge of the city court of Montgomery was correct, unless the failure to continue the case and the subsequent order in the criminal court of Jefferson county by which a forfeiture was taken worked a discontinuance of the case.
It is true that a criminal case, as well as a civil suit, may be discontinued by the act of the prosecuting officer for the state, and a discontinuance is defined as “a gap or cliasm in the proceeding, after the suit is pending.” But, in order to constitute such chasm, it is not sufficient that some ministerial officer has omitted to do something which it was his duty to perform, but it must be the act of the prosecuting officer, indicating his intention to abandon the prosecution of the case. — 12 Cyc. 378; Drinkard v. State, 20 Ala. 9, 12; Harrall v. State, 26 Ala. 52, 57; Ex parte Hall, 47 Ala. 675, 680; Ex parte Driver, 51 Ala. 41; Scott v. State, 94 Ala. 80, 10 South. 505; Ex parte Humes, 130 Ala. 201, 203; Miller v. State, 110 Ala. 69, 85, 20 South. 392; Farr v. State, 135 Ala. 71, 33 South. 660. The case of Ex parte Stearnes, 104 Ala. 93, 97, 16 South. 122, is not in conflict with what has been said. That, and the cases therein cited, are based upon the principle that, when a party is committed on preliminary examination, or bound over to answer an indictment to be found at the term of court, and said court has met and adjourned without action, the mittimus or the bond has become functus officio, and there is no proceeding in court to hold him; consequently, the party is entitled to be discharged from custody.
On the other hand, when a cause is regularly on the docket, the passing of a term without the entering of an order continuing the same does not make such a chasm as to work a discontinuance, unless the record discloses some act of the plaintiff or prosecuting officer by which the chasm is produced. — Ex parte Owens, 52 Ala. 473; Ex parte Holton, 69 Ala. 164, 168; Benson v. State, 91 Ala. 86, 8 South. 873. The action of the court at the second term in entering the forfeiture, while erroneous, *57was not such as to create a chasm, but, on the contrary, showed a continuing prosecution of the case.
The judgment of the court is affirmed.
Tyson, C. J., and Haralson and Denson, JJ., concur.