
    (102 So. 916)
    CLARK v. STATE.
    (6 Div. 492.)
    (Court of Appeals of Alabama.
    Feb. 3, 1925.)
    Criminal law <&wkey;l00l — Trial judge may suspend execution of hard labor sentence for vagrancy until subsequent term.
    Under Code 1923, § 5284, trial judge, in his discretion, may suspend execution of hard labor sentence for vagrancy until subsequent term, and retains control over sentence, and power to enforcé it, to and including date named.
    Appeal from Circuit Court, Jefferson County; William E. Fort, Judge. .
    Carroll Clark was convicted of vagrancy, and sentenced to hard labor for the county, which sentence was suspended until a named future date. The suspension was, prior to the date named, revoked and annulled, and-the original sentence ordered executed. Defendant appeals.
    Affirmed.
    George Frey, of Birmingham, for appellant.
    Indefinite suspension of sentence by the court is an exercise by it of executive power, and unauthorized. Const. 1901, §§ 43, 124; 7 Mayfield’s Dig. 826; People v. Reilly, 53 Mich. 260, 18 N. W. 849; People v. Felker, 61 Mich. 110, 27 N. W. 869; Fuller v. State, 100 Miss. 811, 57 So. 806, 39 L. R. A. (N. S.) 242, Ann. Cas. 1914A, 98; State v. Abbott, 87 S. C. 466, 70 S. E. 6, 33 L. R. A. (N. S.) 112, Ann. Cas. 1912B, 1189; In re Clendenning, 1 Okl. Or. 227, 97 P. ,650, 19 L. R. A. (N. S.) 1041; U. S. v. Wilson (C. C.) 46 F. 748; Neal v. State, 104 Ga. 509, 30 S. E. 858, 42 L. R. A. 190, 69 Am. St. Rep. 175; 8 R. C. L, 254.
    Harwell G. Davis, Atty. Gen., and Jim Davis, Sol., and Willard Drake, Asst. Sol., both of Birmingham, for the State.
    Appellant’s contention is decided against him in Barrett v. State, 18 Ala. App. 246, 90* So. 13; Code 1923, § 5284.
   SAMFORD, J.

The defendant, having-been indicted on a charge of vagrancy on September 25, 1923, appeared and interposed a plea of guilty.. On that date judgment of guilt was entered, a fine imposed, and an additional sentence of 12 months at hard labor imposed. The sentence to hard labor was suspended until April 15, 1924. There was written in the judgment entry:

. “The execution of the 12 months’ hard labor for the county by way of additional punishment’ in this cause, be and the same is hereby suspended till AprilT5, 1924, conditioned on the future good conduct of said defendant and his observance of law.”

The fine and costs were presently paid.

Section 7628 of the Code of 1907 was construed in Vinson v. State, 16 Ala. App. 536, 79 So. 316; Daly v. City of Decatur, 18 Ala. App. 141, 90 So. 69; and Barrett v. State, 18 Ala. App. 246, 90 So. 13. With this construction this section was carried forward and adopted in the Code of 1923 as section 5284. Under that section as we have construed it the trial judge has the power, in Ms discretion, to suspend the execution of the hard labor sentence until a subsequent term of his court, in which event he retains control over the sentence to and including the date named. Barrett v. State, supra.

We find no error in the record and the judgment is -affirmed.

Affirmed. 
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