The opinion
On Rehearing
Appellant’s argument boils down to a contention that a suspension of execution of sentence “pending good behavior” is not a form of probation. This contention, when analyzed in the light of Montgomery v. State, 231 Ala. 1 , 163 So. 365 , 101 A.L.R. 1394 , would render the original sentence invalid as ultra vires. Nevertheless, the adjudication of guilt would stand.
We consider that, in view of the history and text of Amendment 38, supra, the power to suspend a sentence (other than for a short period to let a prisoner settle his affairs and perhaps pay his lawyer) can only be exercised when coupled with an order for probation.
Hence, we indulge the presumption that “pending good behavior” was a form of probation whereunder the prisoner was to be on his honor rather than under a probation officer.
Application overruled.