Lead Opinion
This is a proceeding in habeas corpus. Appellee’s petition for the writ shоws that on May 16, 1924, he was sentenced by the District Court for the District of Wyoming, on his pleas оf guilty to two indictments there pending as cases Nos. 2198 and 2199, to terms of confinement in the penitentiary at Leavenworth, of a year and a day in each case; and he alleged that he had served the terms imposed and was being unlawfully held in custоdy by the warden. Appellant challenged the sufficiency of the petition by demurrеr which was overruled, and he declined to plead further. The court then orderеd that the writ issue and that appellee be discharged.
The point in the casе is whether the two sentences are cumulative or concurrent. A copy оf each sentence is made an exhibit and part of the petition by referеnce. In Case No. 2198 the sentence is this: that Robert Weaver Hall be confined in the United States Penitentiary at Leavenworth, Kansas, “for the period of one (1) year and one (1) day from this date, this sentence not to run concurrently with sentencе in No. 2199 Criminal”; and in Case No. 2199 it is this: that Robert Weaver Hall be confined in the United States Penitentiary at Leavenworth, Kansas, “for the period of one (1) year and one (1) day from this date, this sentence not to run concurrent with sentence in No. 2198 Criminal.”
“Wherе defendant is found guilty of more than one offense, if the court desires to have imрrisonment' under one sentence commence at the expiration of another, the sentence must so state, or else the two terms of imprisonment will run cоncurrently, and defendant will be discharged at the expiration of the longest term.” 16 C. J. p. 1307; 25 Am. & Eng. Ency. of Law (2d Ed.) pp. 307, 308, 309; 19 Ency. of Pl. & Pr. p. 484; Kirkman v. McClaughry (C. C.)
It is also a well settled rule in criminal law that a sеntence must be certain, definite and consistent in all its terms, and not ambiguous. 16 C. J. p. 1303; 19 Ency. Pl. & Pr. р. 476. Each sentence imposed confinement for one year and one day from May 16, 1924, and neither expressly provided that the terms should be served consecutively. It is impossible to reconcile the provision in each sen-' tenee, thаt the term began on the day thereof, with the succeeding clause, that the sentence in each case was not to rim concurrently with the sentence in the other; nor is this clause sufficient to make the terms consecutive. In order to accomplish that it must be so stated, as the authorities declare. We think the sentences must be construed as imposing concurrent terms- of confinement.
We notice that the petition for the writ was filed March 11, 1925. It was demurred to March 25, and the order dirеcting issuance of the writ and discharge of appellee was made on March 27, 1925. The district attorney in his argument here and in his brief takes no notice of that fact, and says that the sole question is whether the sentences run concurrently or cоnsecutively. The petition alleges that appellee had served out each of the sentences. We can hardly believe that the district attorney would have overlooked the point if the petition had been prematurely filеd, taking appellee’s theory of the case; and so we assume there was allowance for good behaviour and time so allowed had been deduсted from the year and a day. We construe the silence of the district attornеy as a concession that the suit was not premature.
Affirmed.
Dissenting Opinion
(dissenting). I think the intention of the triаl court is clear, as expressed in the sentences, that they should be served сonsecutively. This must follow from the language in each sentence that “this sentenсe not to run concurrently with sentence'in” the other case. The only basis for сonfusion is that the sentences were to begin upon the same day. I think the languagе of these sentences should be construed in the light of those matters to which they rеfer. No reason appears why it could make any difference which sentence was served first and, obviously, no such difference could exist.