[White v. The State.] of the Northern Division, wherein he set forth the facts of his indictment trial and conviction as above stated, and whereto he attached as exhibits copies of the judg ment and sentence of the circuit court, and made the following additional averments: "The petitioner having reserved questions of law for the consideration of the Supreme Court, appealed the case to the Supreme Court of Alabama and the case is now pending in said court. The sentence of the petitioner to the penitentiary was never suspended by an order of the Jackson county circuit court, and the petitioner has been ever since said sentence confined in the jail of Jackson county, Alabama, and petitioner alleges that such detention is unlawful, as he is informed and believes." Wherefore he prayed for the issuance of the writ of habeas corpus to the sheriff of said county commanding him to bring the body of the petitioner before the chancellor, etc., etc., "together with the cause of detention of petitioner." As has been indicated there was no order suspending the execution of the sentence either in the judgment entry or the sentence exhibited to the petition, but appended to the sentence as shown in the exhibit is this: "It is ordered by the court that 30 days be allowed for bill of exceptions after adjournment of court." The writ issued in accordance with the prayer of the petition; and in obedience to it the sheriff produced petitioner before the chancellor, and made return to the writ setting forth that he held the petitioner under said judg ment of conviction and sentence, and the facts hereinbefore stated as to questions of law having been reserved on the trial, petitioner's motion for suspension of sentence, his filing bill of exceptions and taking appeal, the pendency of the same in the Supreme Court, etc., and some facts and circumstances intended to show that the prisoner had consented or was content to remain in his custody pending the appeal instead of being imprisoned in the penitentiary under the sentence of the court. The chancellor was of opinion that the petitioner's appeal to this court suspended the sentence against him till it should be determined and that meantime he was rightfully in the custody of the sheriff of Jackson county, and thereupon it was ordered that pe [White v. The State.] titioner be committed to such custody. From that order this appeal is prosecuted. The main, indeed, the sole question thus presented for review is whether the taking of an appeal from a judg ment of conviction of a felony has, ipso facto, the effect to suspend the sentence upon such judgment while the appeal is pending in the appellate court. The question must turn upon our statutes and the construction that has been impressed upon them by decisions of this court, for the right of appeal in criminal-not to speak of civil--cases is purely the creature of statute; and the time and manner of exercising the right in a given case is prescribed by the statute, and the effect of its exercise upon the judgment appealed from must be found in statutory provisions. The first statute in Alabama authorizing appeals in criminal cases was enacted as part of the Code of 1852, having been embraced in that body of laws under the powers of the commissioners to prepare a new Code of practice. That statute, so far as it bears upon this case, was as follows: "§ 3649. Any question of law arising in any of the proceedings on an indictment, may be reserved by the defendants, but not by the State, for the consideration of the Supreme Court." "§ 3650. If such question does not distinctly appear on the record, it must be reserved by an exception taken and signed by the judge as in civil cases." "§ 3652. When any question of law is reserved, the presiding judge must render judgment on the conviction; but the execution of the judgment in cases of misdemeanors, must be suspended until the next term of the court, or the defendant may give bail, with sufficient securities, to appear at such court, and abide the judgment rendered." "§ 3656. In cases punishable capitally, or by imprisonment in the penitentiary, judgment must be rendered; but the execution thereof suspended for at least sixty days after the commencement of the next succeeding term of the Supreme Court." It is clear, we think, that under these original sections an order of the court was necessary to effect the suspension of sentence provided for in them. It is to be noted that alternative courses in respect of the [White v. The State.] execution of the judgment, or rather its non-execution, after appeal are provided in section 3652, that is the judgment was either to be suspended or, not being suspended, the defendant was allowed upon taking the ap peal to give bail for his appearance at the next term of the trial court and abide the judgment rendered. It is, of course, clear in view of these provisions that the mere fact of reserving questions of law on the record or by bill of exceptions provided for in sections 3649 and 3650, nor the taking or pendency of the appeal did not suspend the judgment within the meaning of section 3652, since the suspension there provided for after all things necessary to an appeal required to be done by the defendant had been done, might not be had at all, but instead and in lieu of any suspension and without any such suspension as the section contemplates, the defendant might give bail for his appearance, etc., at the next term of the court. So that it follows from the provisions of this section that something more than the reservation of a question of law on the trial, and something more even than the perfecting of an appeal is essential to the suspension of the judgment under it. That something more can be naught else than an order of the court suspending the judgment; and where no such order is made there can be no suspension within the provisions of this statute. In reference to section 3656 it is to be noted that the provision is not for a suspension of the judgment generally, or pending the appeal, or for any definite time whatever, but "for at least sixty days after the commencement of the next succeeding term of the Supreme Court." Of course, it was not intended that the sentence should be suspended forever, or for an indefinite time, but only for such time as should be necessary to prosecute the appeal. Yet if the reservation of questions of law on the trial or the perfecting of an appeal should be accorded the effect of suspending the sentence, the suspension would be without maximum limitation as to time. So that it was equally necessary here, and manifestly the statutory contemplation that the suspension should result, not from the reservation of questions of law, nor from the certification of the transcript to the Supreme Court, [White v. The State.] but from an order of the court suspending the execution of the sentence for some definite time, not less than sixty days from the commencement of the next term of the appellate court. These sections have been brought forward into all the Codes since that of 1852, without material amendment bearing upon the mode of suspending the execution of judgments except that in the present Code the sections relating to that subject contain a new provision which goes to strengthen the conclusion that a suspension can only be made by an order of court. The recodifications of section 3652 and 3656 of the Code of 1852 are embodied in sections 753 and 754 of Stone & Shepherd's Penal Code of 1866, in sections 4304 and 4305 of the Revised Code (1876), in sections 4980 and 4981 of the Code of 1876, in sections 4511 and 4512 of the Code of 1886 and in sections 4318 and 4319 of the Code of 1896. Prior to the last codification of these sections several decisions bearing upon their construction and interpre tation in the respect under consideration had been made by this court. All of these decisions, and the opinions handed down in the cases went more or less directly to support that construction of the sections which requires an order of the court to suspend the execution of the judgment when the defendant had reserved questions of law for the consideration of the Supreme Court-State v. Lowry, 29 Ala. 44; Er parte Knight, 61 Ala. 482, 488; Bolling v. State, 78 Ala. 469; Ex parte Cameron, 81 Ala. 87; Ex parte Goucher, 103 Ala. 305: It would seem that these cases had prior to the present Code put a construction on these statutes, which upon their renactment by the adoption of the present Code, with an amendment which not only did not evince a legislative purpose to change such construction but which, to the contrary, was in the nature of an express legislative affirmation of it, became a fixed construction, a part of the statutes themselves as if it had been therein written.-Barnewall v. Murrell, 108 Ala. 366, 367; Richmond & Danville Railroad Co. v. Freeman, 97 Ala. 289, 296; Southern Railway Co. v. Moore, 128 Ala. 434. But leaving out of view the forms of the original [White v. The State.] sections, all their history and all this court has decided or said bearing upon them, and considering them, or rather that one of them, section 4318, within which the present case falls, as it stands today, and treating its construction and interpretation as res integra, the conclusion to which we are driven is the same-that nothing but an order of the court which has imposed a sentence can for any purpose suspend its execution. Let the section be first taken as it was, reading thus: "When any question of law is reserved in a case of felony, judg ment must be rendered against the defendant, but the execution thereof must be suspended until the cause is decided by the Supreme Court." This language is inapt to provide for suspension except upon some affirmative action other than that hypothesized in the section. It carries no implication that reservation of a question of law suspends the sentence. The only other act referred to in the section is the rendition of judgment, and this is and is stated therein as antithetical to its suspension. It is not said that the reservation of a question of law suspends the judgment, nor that when any question of law is reserved the judgment is suspended, nor anything of that kind. Had that been the purpose of the legislature, it is inconceivable that they would not have used some such form of expression. But instead the expression they have used palpably implies the operation upon the judgment rendered, and, when rendered, in full force of some power or action extraneous to anything named in the section. The execution of the sentence is not said to be suspended by anything postulated in the statute, it is not said to be suspended at all; but it is said that the execution of the sentence must be suspended. Here we have a judgment rendered and a sentence imposed upon and in accordance with that judgment. That sentence is as potential and as ready for immediate execution as if no question of law had been reserved. Something, the statute contemplates, shall be done to that sentence to prevent its execution to the emasculation of the appeal. That something is its suspension. The statute does not work its suspension. There is but one force that can suspend it. That is the court which rendered it. The command of |