
    O’Neil v. The State.
    
      Petition for Habeas Corpus.
    
    1. Habeas corpus; convict not discharged because retained in quarantine. — While a party who has been convicted and sentenced to suffer imprisonment in the penitentiary must not. thereafter be detained by the sheriff for an unreasonable length of time, if at the time of receiving the sentence the convict has been exposed to smallpox or other contagious disease, which prevailed in the jail where he was confined up to the time of his conviction, the detention of such convict by the sheriff at a place of quarantine for the time necessary for him to become immune from the exposure to the disease, is not a detention for an unreasonable length of time, and does not entitle such convict to his discharge.
    Appeal from the City Court of Montgomery.
    Tried before the Hon. A. D. Sayre.
    On May 8, 1902, thei appellant, John O’Neil, through his attorney, filed the petition in'the present suit, addressed to Hon. A. I). Sayre, judge of the city court of Montgomery, in which he averred that he was imprisoned and restrained of his liberty by W. B. Waller, the sheriff of Montgomery connty, on the farm of said Waller, which was about 4 miles from the city of Montgomery; that said petitioner had been tried and convicted in the said city court of Montgomery on an indictment charging him with grand larceny; that after being convicted, he was sentenced to the penitentiary for a term of three years; that he had, on April 23,1902, filed a petition asking for a writ of habeas corpus, and that lie be discharged from such unlawful custody, a.nd that on the hearing of said petition, there was am order isued remanding him to the custody of the inspectors of convicts, to be by them held under the sentence of the city court of Montgomery, but that said order" was. not complied with and said petitioner ivas detained by the said Waller a.s sheriff of Montgomery county in his custody and returned to. the farm of said Waller and ivas there ma.de to work. Thereupon the petitioner averred that his imprisonment was unlawful foir the following reasons: “First. Though the original imprisonment was unlawful said John O’Neil has become entitled to his discharge by reason of subsequent act, omission or event. Second. The person who has the custody of said O’Neil is not the person authorized by law to detain said John O’Neil. Third. Your petitioner further avers that said John O’Neil is being worked together with felons and misdemeanants, is confined to the same compartments with white and black convicts, and with male and female convicts contrary to the statutes of Alabama Code, § 4493. Fourth. Said John O’Neil is confined by one Wm. R. Waller as sheriff of Montgomery county Avho is. interested in the profit of his labor contrary to la.Avs of the State of Alabama. Fifth. Said John O’Neil is confined by W. R. Waller, sheriff of Montgomery county, contrary to the Code of Alabama, § 5117. Sixth. Said John O’Neil was convicted on the 26th day of March, 1902, and has not yet been taken to the penitentiary of the State of Alabama, thereby causing an unseasonable and unwarranted delay. Seventh. Your petitioner further avers* that the said John O’Neil is detained by said Waller contrary to the order of Hon. A. D. Sayre, judge of the city court, and, if there had ever been any exposure of the said John O’Neil to small pox, or any other contagious disease, that a sufficient time has elapsed since the sentence of said O’Neil to have demonstrated that the said O’Neil has not contracted any disease and that further detention for observation is unnecessary. Eighth. Your petitioner avers that the order of Hon. A. D. Sayre has been Avillfully and ihtentionallv disobeyed and disregarded by the said W.' R Waller, 'sheriff, and the convict inspectors of Alabama. im that] said convict inspectors have not regarded said order of Hon. A. 1). Sayre, as judge aforesaid, but arc trifling with the order of the said judge by a willful disregard and disobedience of said order.”
    The prayer of the petition was for the issuance of a writ of mandamus addressed to said W. R Waller, individually and as sheriff of Montgomery county, commanding him to bring the body of said John O’Neil before' the judge to whom the petition was addressed.
    in answer to the writ of habeas corpus issued, the said AT. R Waller brought the said O’Neil before the court and made his return or answer to said writ. The substance of this answer is sufficiently stated in the opinion.
    Upon the hearing, tin1 judge of the city court remanded the petitioner to the custody of the inspectors of convicts to be held by them under1 the sentence of the city court of Montgomery. Thereupon the petitioner requested the judge presiding to suspend sentence pending his appeal to the Supreme 'Court; said petitioner having given notice of said appeal. The judge declined to suspend said sentence, and to this ruling the defendant excepted. The petitioner appeals.
    Terry Richardson, for appellant,
    cited Code, § 4495; Ex parte. Gaucher, 103 Ala. 306; Ex parte King, 82 Ala. 60; Ex parte Me Kent, 56 Ala. 236; Ex parte Kirby, 62 Ala. 51; Ex parte Metcalf, 75 Ala. 42; Ex parte Smith, 76 Ala. 69; Ex parte, Stewart, 98 Ala. 68; Ex parte Grows, 78 Ala. 457.
    ■Chas. G. Brown, Attorney-Genera,1, for the State.
   HARALSON, J.

It is well understood, that when a party has been convicted and sentenced to hard labor for the county, or to suffer imprisonimeinitl in the penitentiary, a sheriff must not detain him afterwards, in the county jail or elsewhere, for an unreasonable length of time, and that an unreasonable detention, entitles the prisoner to be discharged from the custody of the sheriff, but not absolutely as Ave shall see, for a “subsequent act, omission or event.” — Ex parte Goucher, 103 Ala. 305. The sheriff should deliver the convict to the proper authorities after sentence has been passed, as soon as he can do so, consistently Avith the discharge of his duty. — Ex parte King, 82 Ala. 59. What is a reasonable or unreasonable time to detaim him, depends on the circumstances of each particular case. If the convict at the time should be too. sick to be removed from the jail by the inspectors of convicts, his detention there until such time as he may be able to be safely taken therefrom amid carried to the place to Avhich he is sentenced to labor, could not be said to be an unreasonable detention.

In this .case, it Avas shoAvn that smallpox had prevailed in the jail where the petitioner had been confined, up' to and a.t the time of his conviction. To have removed him from the jail to the penitentiary, immediately after his conviction, and placed him at labor Avith other convicts in that prison, Avould have exposed them to liability to the disease, an act Avhich the ordinary claims of humanity would condemn. There is no laAV, of which Ave are aware; that would sanction his transfer under such circumstances, or be violated in his detention elsewhere, in quarantine, until after the lapse of the period fixed by experience to render it safe to the other convicts for him to be taken to. the penitentiary. The physician inspector testified on the trial, that in his opinion the petitioner had been exposed to smallpox; that it required twenty-one days after exposure, for him to become immune therefrom, and that the quarantine period of twenty-one days expired on the 6th of May, 1902. To what place a convict may be removed and kept in a case of this character, is not specified in the statute; nor has specific provision been made, so far as avg are aware, to meet an emergency of the kind. It may have been deemed unimportant to do so, the presumption being that the inspectors of convicts might be trusted with his keeping meantine, at some suitable, safe place for his. detention, until the time arrived Avhemi he could, with safety to other convicts, be carried to the place of labor as specified in his sentence. This place may well be at a hospital or outhouse where persons exposed to small pox are quarantined, or on a farm, or other isolated place, such as. the good judgment of the authorities, and a due regard to. the safety and health of the convict may require. This Avould be no more a violation of law, than would be the removal of convicts from one prison to another, in case their health and lives required it. The. duty of humane treatment of prisoners, to preserve their lives, health and comfort, so far a,s comports with their safe keeping and the punishment they are to- receive, pervades our whole convict system, and the claims of humanity are not to be needlessly disregarded.

This convict was sentenced to three years’ imprisonment in the penitentiary, on the 14th of April, 1902, after conviction on an indictment for grand larceny. The reason why he was not a.t once delivered to the penitentiary authorities, as set out in the answer of Waller, who was sheriff at the time, and against whom this writ was issued, was, that “on or about the 14th day of April, 1902, he made a contract Avith the Board of Convict Inspectors of Alabama, for the hire of certain convicts, the object and purpose of Avhich contract Avere, to. place the said convicts in quarantine: until the danger of contracting small pox, to AA’hich, as avús feared, they had been subjected, should .be over* and passed, and Avhile he Avas so holding the said O’Neil, one of them, a Avrit of habeas corpus Avas sued out, and he Avas. brought before the Hon. A. I). Sayre, upon application for discharge, AA'hich petition was denied, and the said O’Neil Ava-s remanded to the custody of the Board of Convict Inspectors, A\iio, as respondent is informed and believes, having no. place of safety in AA’hich to keep the said O’Neil, without danger of spreading the disease among a large number of convicts, should he develop the disease to AA'hich he had been subjected, procured this respondent, to take charge of the said O’Neil and keep him safely until the expiration of 21 days after he left the jail, Avhich had been for months infected with smallpox.” Further ansAvering, he stated, “that on the 5th day of May, 1902, being Monday of the present week, the president of the Board of Convict Inspectors, directed where said O’Neil should he taken for hard labor, to-wit, to the Tennessee Coal, Iron & Railroad Company, and (he.) so notified that company, on that day, having at the time good reason to believe, that O’Neil would b(i removed to Pratt City on the following day, May 6th, 1902, but (for) some cause, not known to- respondent, demand was not made for the said O’Neil, until May 9th, 1902, which was done on that day.”

The petition, which is the second one before the same judge, was tiled on the 8th May, 1902, and after trial, on the 10th of the same month, the judge, as on the triai of the first writ, refused to discharge the petitioner, and, as before, made an order remanding him to the custody o-f the Inspectors of Convicts to be held by them under the sentence of the city court of Montgomery.

The. evidence on the trial tended to support the averments of the answer of defendant, Waller, and under it, we fail to discover that petitioner has presented -any good masons for his discharge. The trial judge very properly held, that it had not been shown that he had been detained from the penitentiary for an unreasonable length of time. But even if he had bean detained by the sheriff for an unreasonable, length of time, within which be. should have been delivered to the convict inspectors, he would not, on that account, have: been entitled to be discharged absolutely, but only from the custody of the sheriff, with an order remanding him to the custody of the convict inspectors, and directing the sheriff to so immediately deliver him. — White v. State, infra, p. 197.

There was no- error in the refusal of the judge to suspend the execution of the sentence of the city court, during the pendency of this appeal.

Affirmed.  