[White v. The State.]

the statute is, therefore, laid on the court. The court can act in obedience to the command only by an order of suspension. And this it is that the statute commands the court to do to enter an order suspending the sentence to the end that the defendant may have the benefit of his reservation before he is put to the sentence which he challenges as unlawful, or as having been erroneously imposed. The language of the statute, in short, is most apt and adequate to impose on the court in the contingency named the duty to suspend the sentence in the only way a court can suspend a sentence, to-wit, by an order on its minutes to that effect. It is wholly inapt and inaccurate to a suspension of the sentence in any other way. And to hold that under it the sentence is suspended or could be by any other means would be to do violence to its clear import.

When this section is considered with the amendment introduced in the last Code as a part of it, the conclusion is all the more evident and inevitable. That amendment is, as we have seen, to the effect that the sentence shall be suspended when questions of law have been reserved only in the event "it shall be made known to the court that the defendant desires to take an appeal to the Supreme Court." This provision makes it plain beyond cavil or doubt that it is not the reservation of questions of law upon the record or by exceptions taken that suspends the sentence, for though questions are reserved in either or both mode, something else must be done before the sentence can be suspended. It is further necessary to the exercise of the power of suspension that defendant's desire to take an appeal "shall be made known to the court." And this information to the court manifestly does not operate the suspension, but only supplies the statutory invocation for the exercise of the court's power to suspend, the predicate for an order of suspension when questions of law have been reserved. Of course, the court always knows when a question of law has been reserved on the record or an exception taken for embodiment in a bill of exceptions, on the trial of a case; but it by no means follows that a defendant who reserves a question of law during the trial

[White v. The State.]

desires to take an appeal at the end of it in his conviction. He may be satisfied with the sentence, fearing a more onerous one upon another trial. Or he may conclude that there is no merit in his reservations, and prefer to enter at once upon the sentence to remaining in jail while his fruitless appeal is pending, and so avoid an useless prolongation of imprisonment. Even when af ter conviction he has taken an order for an extension of the time for perfecting a bill of exceptions, he may not at that time desire to take an appeal, or he may never perfect a bill of exceptions and thus lose the benefit of the reservations he has brought to the attention of the court in the progress of the trial to be perfected as of that trial by relation when the bill is signed.-Ex parte Cameron, supra. And it was because of cases of these kinds, well known to frequently occur in practice, that the statute was amended so as not to require an order of suspension upon the reservation of questions of law unless the defendant should also make known to the court his desire to appeal. But whatever the reasons for the amendment may be, its palpable effect is to authorize suspension of sentence only in the contingency named, and to make it entirely clear that the only suspension of sentence authorized by the statute is one made by an order of the court.

That this is the meaning of the statute-that neither the reservations of questions of law on the trial with a view to appeal nor the perfecting of an appeal and lodgment of the cause in this court operates to suspend the judgment-is further demonstrated by several other sections of the Code. Section 4324, for instance, provides, that when the execution of the judgment has been suspended as provided by the sections we have been considering, or when an appeal is taken without such suspension, the clerk shall make out and forward the transcript, etc. etc. Section 4326 provides for the dismissal of his appeal by a defendant at any time before the transcript has been forwarded to the Supreme Court by filing a statement to that effect with the clerk of the trial court, and that if the judgment has been suspended such dismissal shall terminate the suspension. Section 4468 provides for the removal of a convict from the peniten

[White v. The State.]

tiary upon the reversal of the judgment of conviction against him back to the county of trial. And section 5430 provides for the execution of a death sentence on the day appointed by the court, "unless such court suspends the execution, on account of the reference [reservation?] of some matter of law arising on the trial for the determination of the Supreme Court.” Each of these sections clearly and necessarily excludes the idea that the reservation of questions of law or the taking of an appeal can in any case operate the suspension of the sentence.

Thus the law is written, and it is wisely so written. Under it there will arise no difficulties in dealing with defendant after conviction. The sheriff after adjournment of the term has only to look to the minutes of the court for an order suspending the sentence. If he finds such order, he keeps his prisoner in the county jail: If he does not find it, he delivers him to the penitentiary authorities, or otherwise proceeds with the execution of the sentence of the law pronounced by the court. If it were the law that the reservation of questions of law or the taking of an appeal suspended the sentence, it is easy to see that many difficulties would arise. What, for example, would the sheriff do with a convict who had been granted time beyond the term to perfect his inchoate reservations of questions of law by presenting a bill of exceptions? Especially as the inchoate reservations when thus perfected relate back and have effect as of the term of trial? And more especially when the convict may never perfect his inchoate reservations at all—may never prepare a bill of exceptions? These suggestions uncover only some of the difficulties that would arise. Others will suggest themselves. The subject needs but cursory consideration to a demonstration of the wisdom of the legislature in providing for a suspension of sentence by the only regular and orderly mode the sentence of a court can be suspended-by an order of the court which pronounced the sentence.

We attach no importance to the suggestions in the sheriff's return intended to show that the prisoner's continued confinement in the county jail after he should

[White v. The State.,

have been sent to the penitentiary was in accordance with his, the prisoner's, wishes. A man cannot legalize his incarceration by this sort of quasi convention between himself and the sheriff,nor estop himself to demand enlargement from illegal imprisonment by hav ing at one time unavailingly asked the court, having jurisdiction in the premises, to order that he be so confined instead of being put to the sentence which had been imposed on him or by a personal preference for the county jail as against the State penitentiary as a place of confinement. Moreover, he was not kept in jail because of any such preference on his part, but because the sheriff supposed that the sentence against him had been suspended.

An expression of the present writer in the case of State v. Roberts, 126 Ala. 87, may have had something to do in leading the chancellor to the conclusion that the taking of an appeal itself suspended the sentence. It was there said that the effect of an order of this court setting aside a dismissal of an appeal and reinstating it was to suspend the judgment and sentence. This with what was said in the same opinion in stating the position of counsel naturally tended to the conclusion that the court entertained the view that the appeal itself suspended the sentence. But as matter of fact the sentence in that case had been suspended by a formal order of the trial court, and, having reference to that fact, the effect of the order here reinstating the appeal was also to reinstate the suspension order of the trial court, and, through that, to suspend the sentence in that court.

Our conclusion upon this part of the case, therefore, is that the chancellor was in error in holding that the sentence of petitioner was suspended by the appeal, and that consequently he was rightfully imprisoned by the sheriff in the county jail.

But it by no means follows that the petitioner is entitled to be discharged absolutely. He is in the custody of a person who "is not the person authorized by law to detain him, the penitentiary authorities, and the full measure of his right is to be relieved of the unlawful restraint and remanded to such lawful custody, subjected to the restraint provided by the unsuspended sen

[White v. The State.]

tence against him. The case of The State v. Roberts, supra, (126 Ala. 87) is an authority for this proposition. There the sentence was suspended by an order of court and of consequence the sheriff was the defendant's lawful custodian pending the appeal. The prisoner notwithstanding this, however, was delivered to and impris oned by the officers of the penitentiary under the sup posed authority of the suspended sentence. These persons were not-as the sheriff is not here "authorized to detain him." The city judge discharged him on habeas corpus from the custody of the penitentiary people, but remanded him to the custody of the sheriff. This order was made on the theory that the judgment against the prisoner was void and that the sheriff was entitled to hold him for trial in the nisi prius court; but it was affirmed on the ground that the sentence on the judg ment had been suspended pending an appeal, and that because of such suspension the sheriff and not the officers of the penitentiary was charged with his custody.

The principle upon which we proceed in this case of The State v. Roberts, appears to have been recognized by this court in the cases of Kirby v. State, 62 Ala. 51; Ex parte Pearson, 59 Ala. 654 (which, we believe, was the first case of unreasonable detention by sheriff after conviction); Ex parte Goucher, 103 Ala. 305 (which was the last); Ex parte Crews, 78 Ala. 457; and Ex parte Stewart, 98 Ala. 66; and the absolute discharge of the convict in each of those cases is rested upon the considerations that he had been detained by the sheriff in the county jail for an unreasonably long time after sentence to hard labor for the county, and that the commissioner's court had not provided for any place for his imprisonment under such sentence.

The report of the case of Ex parte Rand, 99 Ala. 302, does not show whether a place of confinement at hard labor had been provided by the commissioner's court, but the record of the case does show that such provision had been made. As that case and Ex parte Goucher, supra, were decided by the same bench and the opinion in each was prepared by the same judge, and as in Goucher's case the fact that no such provision had been