
    
      Ex parte Pearson.
    
    
      'Herberts Corpus.
    
    1. The sentence of a court must lie strictlff. obeyed by the officer charged with its execution.&emdash;A prisoner convicted and sentenced by a court of competent jurisdiction to perform hard labor for the county during a specified term, can not be punished by a confinement in jail for such a period.
    Appeal from the Court of Probate of Coosa.
    Tried before the Hon. John S. Bentley.
    On the 16th day of November, 1877, William Pearson -.made to the Hon. John S. Bentley, judge of probate- of Coosa . county, the following application for a writ of ¡tabeas corpus, .viz.:
    “Your petitioner, William Pearson, respectfully represents to your Honor’, that at the fall term, 1877, of the Cir- . cuit Court of Coosa county, he was indicted and tried on an indictment for arson in the third degree.” (Here follows a ...copy of the indictment, which is in the form prescribed by the Code.)
    “Your petitioner further represents, that upon the said ■trial he was, by the verdict of the jury, found guilty of the offence charged in the said indictment, and thereupon the •following sentence was pronounced, and the same was entered up, and is now the judgment of the court in said cause, viz.: ■■•'The State, No. vs. 766, William Pearson. On this, the 20th day of October, 1877, it being the sixth day of the term, -came the State, by its solicitor, and also came the defendant ,in person and by attorney, and for plea, says that he is not guilty. And thereupon came a jury of good and lawful men, -, to-wit: Thomas Mitchell and eleven others, who being duly • empanelled and sworn/ say : ‘ We, the jury, find the defendant guilty, as charged in the indictment.’ It is therefore ■ considered by the court that the defendant be sentenced to hard labor for the county for a term of twelve months; also, for an additional term until the costs of this suit are paid, at the rate of twenty-five cents per day.’-
    “ Your petitioner further represents unto your Honor, that .at the time he was tried and convicted, the Hon. J. E. Cobb, who was the presiding judge, informed the sheriff in open •court, as is usual .in such cases, that the defendant, this petitioner, was then in his custody. Whereupon, the sheriff committed petitioner to jail, and the petitioner has ever since ■been, by the sheriff, confined in the jail of Coosa county, and is now in confinement in said jail, under said order and sentence, and has not been put to hard labor for the county, as ■ directed by said sentence and order.
    “Your petitioner further represents, that the Commismissioners Court of Coosa county did, at the April term, 1875, of the said court, make the following order with refer - • ence to convicts sentenced to hard labor for the county, viz.:
    “‘Regular term, April 5th, 1875. It is ordered by the ■ court that the acting sheriff of this county be, and he is hereby, appointed superintendent of public labor, and that all persons sentenced to hard labor by any of the courts of this county, shall be under his control; and it is further ordered, that said .sheriff be, and he is hereby, directed first, to hire such persons out to any responsible persons 'who will secure fine and costs aforesaid against persons sentenced to hard labor, by the payment of the same in money, or by such security as will secure the payment of the same punctually, and in the .event more than one person wants to hire one or more convicts, the hiring may be to the highest responsible bidder, and any order of this court heretofore passed regulating hard work be, and the same is hereby, revoked.’
    “Your petitioner further states, from information, that there is no-other order or arrangement made by said Commissioners Court, than the order above recited, for the purpose of hiring out at hard labor county convicts in this •■county. Petitioner states, from information which he believes to be true, that he is illegally confined in the jail of ■this county by the sheriff; that he is not held by the order of any court by said sheriff, and his detention and confinement in the jail of Coosa county is wholly without authority •of law; that the sheriff, J. T. Thompson, upon demand made upon him for cause or process upon which petition is held in confinement, stated that he had lately come into the office of sheriff of Coosa county, and since the conviction and sentence of the petitioner as aforesaid; that he found petitioner there, but had no writ, or process, or order for his detention, other than the outgoing sheriff informed him that he had been sentenced as stated in the order of the court mentioned in this case. Hence, petitioner states that there is no other cause for his confinement in said jail by said sheriff, than said sentence and judgment.
    “ Petitioner again states from information which he believes to be true, that he is illegally restrained by said J. T. Thompson, and that his confinement by said J. T. Thompson as sheriff of Coosa county is without authority of law. He, -therefore, prays that a writ of habeas corpus issue by your honor, directed to J. T. Thompson, commanding him to produce the body of petitioner, together with the cause of his detention, on Wednesday, 28th day of November, 1877, at'Rockford, and that upon the hearing, your honor will make an order discharging petitioner from the custody of said J. T. Thompson, and from further confinement in the county jail of Coosa county, under the order of the Circuit Court herein set out, aud as in duty bound he will ever pray,” &c.
    The judge of probate granted the writ of habeas corpus as prayed for, and made it returnable before himself on the 28th day of November, 1877. Upon the hearing of the case it appeared that the solicitor had been duly notified of the application for the writ; and all the facts alleged in the petition were clearly proven.
    The court, “after carefully hearing the evidence and duly considering the same, together with the argument as to the grounds for the discharge asked in this case, it is ordered and adjudged that the petition of the said William Pearson be dismissed, and that the said J. T. Thompson; as sheriff and jailer, has the legal custody of the said Pearson, and that he retain him in his custody until he or the Court of County Commissioners, or some one else authorized by said court, shall put the judgment and sentence of the Circuit Court into execution by putting the said Pearson to hard labor for the county. To which judgment and order the-petitioner exeepted.”
    No Counsel for the appellant.
    
      John W. A. Saneoiu), Attorney-General, for the State.
   Pee Cueiam.—

A majority of the court (Manning, J., dissenting) are of opinion, not without much hesitation and doubt, that the petitioner is entitled to discharge from further imprisonment. The judgment of the probate judge must be reversed and writs of habeas corpas and certiorari will accordingly issue, unless the judge of probate, on being properly informed of this opinion, shall make an order, relieving the petitioner from further imprisonment.  