
    Wright v. The State.
    
      Violating Prohibition Law.
    
    (Decided December 15, 1915.
    Rehearing denied January 12, 1915.
    67 South. 798.)
    1. Courts; Resentence; Jurisdiction; Continuance. — Where a defendant was convicted, and appealed to the Court of Appeals, where the judgment of the trial court was annulled, and the cause remanded with direction to resentence the defendant, the proceedings remained undetermined in the trial court when it adjourned for the term, but after the mandate had been received, and the case was continued by operation of law to the next term, at which time the court could resentence the defendant in accordance with the mandate.
    2. Appeal and Error; Orders Appealable; Criminal. — Where the defendant appealed from a conviction, and the appellate court reversed the cause bach to the judgment, with direction to the trial court to resentence the defendant, a sentence pronounced by the trial court in accordance with such mandate will not sustain an appeal under section 6244, Code 1907.
    Appeal from Walker Law and Equity Court.
    Heard before Hon. T. L. Sowell.
    Alf Wrigbt was convicted of crime, and on appeal tbe judgment was reversed with a mandate to tbe court below to reseiatence the defendant in accordance with law. From a sentence to hard labor pronounced in pursuance to the mandate. (See 9 Ala. App. 79, 64 South. 173) the defendant appeals.
    Appeal dismissed.
    Finch & Pennington, for appellant.
    The court had not power to alter the prior judgment after the adjournment of the term at which it was rendered. — In re Newton, 94 Ala. 431; Gofer v. The State, 52 South. 934; Lacy v. Hendricks, 51 South. 157. An appeal will lie from such an order. — Authorities supra.
    W. L. Martin, Attorney General, and W. H. Mitchell, Assistant Attorney General, for the state.
    The sentence was in accordance with the mandate of the court. —Wright v. The State, 9 Ala. App. 79. An appeal will not lie from the resentence, as it is not within the provisions of § 6242, Code 1907.- — Allen v. The State, 141 Ala. 35; Palmer v. The State, 168 Ala. 124.
   BROWN, J.

The appellant was indicted at the spring term, 1913, of the Walker county law and equity court for a violation of the prohibition law, and on the 7th of July thereafter was convicted of that offense, and a fine of $50 assessed against him. Failing to pay the fine or to confess judgment therefor, he was sentenced to hard labor for a period of 20 days to pay the fine, and, as an additional punishment for the offense, to hard labor for the county at the rate of 75 cents per day for the payment of the costs; but the judgment of the court did not ascertain the number of days the defendant was required to serve for the payment of costs. From that judgment and sentence, he prosecuted an appeal to this court, and on the 18th day of December, 1913, the judgment was in all things affirmed, except as to the sentence to bard labor for tbe payment of costs; that part of tbe sentence being reversed and annulled, and tbe cause remanded, with directions to tbe trial court to have tbe defendant brought into court in order that a proper sentence might be pronounced against him for tbe payment of tbe costs.—Wright v. State, 9 Ala. App. 79, 64 South. 173.

Tbe certificate embodying tbe mandate of this court was issued on tbe 20th of December, 1918, and was received and filed by tbe clerk of tbe trial court on tbe 24th day of December, during tbe same term of that court at which tbe judgment of conviction was rendered. Tbe next term of tbe law and equity court began on tbe 1st day of January, 1914, and on tbe 5th of January, 1914, tbe defendant was brought into open court and a sentence pronounced against him, in accordance with tbe mandate of this court. There is in tbe record what purports to be a bill of exceptions, showing that tbe ground urged by tbe defendant why be sbpuld not be re-sentenced was that tbe law and equity court, having adjourned for tbe term at which tbe judgment of conviction was rendered, bad no power at a subsequent term to impose tbe sentence in accordance with tbe mandate of this court, citing, in support of this contention, In re Newton, 94 Ala. 432, 10 South. 549.

We are not unmindful of tbe general rule that a court is without power to alter, vary, or annul its final judgments or decrees after tbe close of tbe term at which rendered, except for tbe correction of clerical misprisions or amendments, tbe evidence of which tbe record affords.-Sweney v. Tritsch, 151 Ala. 242, 44 South. 184. This rule, however, has no application when tbe continuity of tbe proceedings is maintained by an appeal regularly taken from such final judgment resulting in tbe annulment of such final judgment in any respect, and a re-mandment of tbe cause by the appellate court for further proceedings in accordance with the mandate of the appellate court.—State, ex rel. Attorney General v. Gunter, 11 Ala. App. 399, 66 South. 844.

When an appeal is taken from a judgment of a nisi prius court, it is the duty of the clerk of the trial court to retain the case on the docket, and if this is not done, in the event the case is remanded for further proceedings in the trial court, it is the duty of the clerk of the trial court to redocket the case, and when the court adjourns for the term, if a special-order of continuance is not entered in that case, the continuity of the proceedings is preserved by a general order of continuance, which it is the duty of the nisi prius court to make. The record in this case does not purport to set out all the proceedings of the trial court, and in the absence of a positive showing in the record that the clerk of the trial court failed to perform his duty, this court would indulge the presumption that he did (Jones on Evidence, §45), but it is not necessary to the validity of the proceedings in this case that this' presumption be indulged. By the appeal and the reversal of the sentence of the trial court at the instance of the defendant and rhe re-mandment of the cause for proper sentence, the proceedings were still in fieri, and when the law and equity court-adjourned for the term, the case was continued by operation of law until the next succeeding term. — 4 Ency. PL & Pr. 830; Greer v. McGehee, 3 Port. 398; Ex parte Driver, 51 Ala. 41; Ex parte Owens, 52 Ala. 473; Clemens v. Judson, Minor, 395. This distinguishes the case from the case of Ex parte Newton, supra, relied upon by the appellant. In that case, the trial court rendered a judgment on the verdict of the jury, adjudging the defendant guilty and assessing the fine fixed by the verdict as a punishment for the offense, without imposing the alternative sentence to hard labor in default of payment of the fine and costs, and, immediately after the rendition of that judgment, the defendant took an appeal therefrom to the Supreme Court, and entered into a bond with surety for her appearance to abide the judgment of the Supreme Court. The judgment of the trial court was affirmed in the Supreme Court, and thereby the judgment of the trial court was merged into the judgment of affirmance. There being no remandment, as in this case, that Avas an end to the proceeding, and the trial court in that case had no authority at a subsequent term to impose the alternative sentence to hard labor in default of payment of the fine. We hold, therefore, that the law and equity court had authority, and it was its duty, to impose a sentence in accordance with the mandate of this court.—State, ex rel. Attorney General v. Gunter, supra.

Section 6244 of the Criminal Code, giving the right of appeal to persons convicted of crime, provides: “Any person convicted of a criminal offense in the circuit court, or other court from which an appeal lies directly to the Supreme Court, may appeal from the judgment of conviction to the Supreme Court.”

The appeal in this case is from the sentence to hard labor pronounced by the court against the defendant for the payment of the costs after the cause was remanded by this court to the trial court with directions to pronounce that sentence, and the Attorney General has made motion to dismiss the appeal on the ground that that sentence will not support the appeal. The statute only authorizes an appeal from the judgment of conviction, and the defendant has exercised that right by his first appeal to this court, and the judgment of conviction has been affirmed. No appeal is authorized by the statute from the sentence to hard labor pronounced by the trial court, in pursuance of the mandate of this court (Allen v. State, 141 Ala. 35, 37 South. 393), and the motion of the Attorney General to dismiss the appeal is granted.

Appeal dismissed.  