
    Seelye v. The State.
    
      Indictment for Assault and Battery; Habeas Oorpus Proceedings.
    
    1. Practice act of city court of Montgomery; defendant can he sentenced after expiration of thirty days 'from date of judgment. — Section 11 of the act approved Feb. 7th, 1901, “to prescribe the rules of practice and procedure in the city court of Montgomery,” etc., (Acts 1900-1901, p. 826), providing that after the expiration of thirty days from rendition of final judgment in said court, such judgment shall be beyond the control of the court as if the term of the court had ended at the expiration of said thirty days, applies only to civil-cases; and therefore, notwithstanding said act, it is competent for the court in a criminal case, after the expiration of ' thirty days from the judgment of conviction, to pass sentence upon a defendant in a criminal case.
    
      Appeal from order of Judge of City Court of Montgomery.
    Heard before the Hon. A. I). Sayre.
    Appeal from City Court of Montgomery.
    Heard before the Hon. W. H. Thomas.
    The appellant in this ca.se, Charles Seelye, prosecutes two appeals to this court; one from the order of the judge of the city court, denying his discharge on habeas corpus proceedings, and the other from judgment of conviction under indictment for assault and battery. The. facts of the case are sufficiently stated in the opinion.
    Ray Rushton, for appellant.-
    -Section 11 of the act regulating practice in the cify court of Montgomery, applies b}r its very terms to all judgments rendered in said court, both civil and criminal, provided such judgments are final judgments. — Acts 1900-1901, 831; Reeves v. State, 105 Ala. 120; Napier v. Foster, 80 Ala. 379; Stewart v. L. cC- N. R. R., 83 Ala. 493; Lehman v. Robinson, 59 Ala. 219; Woolseij v. Cade, 54 Ala. 378.
    This being the case and thirty days having elapsed from date of judgment of conviction, the court was without power to impose a sentence upon defendant. FjX parte The State in re Newton, 94 Ala. 431; People v. Feller, 61 Mich. 11.
    Massey Wilson, Attorney-General, for the State,
    cited Clanton v. State, 96 Ala. -Ill; Charles v. State, 4 Port. 107; 19 Ency. PI. & Pr. 446, and cases cited.
   HARALSON, J.

As agreed by counsel on both sides, “The only point in the case is, whether after the expiration of thirty days after the judgment of conviction, the court had any authority of law for detaining Seelye. [the petitioner and appellant], and whether'at that time, it had a right to sentence him to hard labor for the fine and costs, or impose on him any other punishment.”

Section 1.1 of an act, approved February 7th, 1901, (Acts, 1900-1901, p. 826), “To prescribe rules of pracrice and procedure' in the city court of Montgomery, and to define the powers of the judge of said court in'reference thereto,” provides, “That final judgments rendered in said court shall after the expiration of thirty days from their rendition be taken and deemed as completely beyond the control of the court as if the term of the said court at which the said judgments were rendered had ended at the end of said thirty days; provided, however, that nothing herein contained shall prevent parties from applying for new trials or rehearing within said thirty days or destroy or change the effect of motions for new trials or reliearings, when so made, or shall prevent parties from applying to said court for a rehearing under the statute authorizing application for rehearing in the circuit court, or shall prevent the court from retrying any cause under sections 3341 and 3342 of the Code of Alabama, or shall prevent the court from the exercise of any power of jurisdiction conferred upon the circuit court touching final judgments.”

The petitioner was indicted in October, 1901, and convicted on the 12th day of November, 1902, of an assault and battery, and the jury fined him $250. On that day a judgment was duly and regularly entered up against the defendant, adjudging him guilty of an assault and battery, and further adjudging, that the State of Alabama for the use of Montgomery county have and recover of said defendant (the petitioner and appellant), the amount of said fine and the costs, etc., and ordering that defendant be remanded to jail to await the sentence of the law.

On the 23rd of .December, 1902, more than thirty days after his conviction, defendant sued out a writ of habeas corpus before I-Ion. A. D. Sayre, judge of the city court of Montgomery, directed, to the sheriff, who, in his return set up the above judgment, and Judge Sayre on the hearing of the cause •remanded him to the custody of the sheriff. On the same day that Judge Sayre rendered his decision in said habeas corpus proceedings, Judge Thomas, associate judge of the said city court, before whom the case of the State against the defendant had been tried and in which he was convicted of assault and battery, and during the same term of the court, sentenced the defendant to hard labor for the fine and costs in said case. The defendant appeals to us in the casé itself and in the habeas corpus proceedings, and raises the same question in both cases, the two causes being submitted to be tried together.

It is stated by counsel for appellant in brief, that if said section 11 of the act referred to “does not apply to criminal cases, the court did have the right and power to impose hard labor for said fine and costs, and it was its duty to do so.”

We have carefully examined said section, and also the several sections of the act, of Avhich it is a part. The section itself contains much, if considered alone, indicating that it applies alone to civil cases, and on examination of the several sections of the act in connection with said section 11, it becomes reasonably certain that such is its proper interpretation. Especially is this conclusion emphasized by section 11 of said act, providing that all bills of exceptions relating to the trial of civil causes in said court must be signed by the presiding judge of said court within thirty days after the day on which the issue of fact to which said bill of exceptions relates Avas tried, unless the time be extended by agreement of parties or of their counsel, or by order of the presiding judge as now authorized by law respecting the signing of bills of exceptions in the circuit court. No reference is here made to bills of exceptions in criminal cases, but-the provisions relate alone to civil causes, and bills of exceptions in criminal cases are left under the general law, just as they were before said act Avas passed.

The judgment of the court in each case must be affirmed.  