120 Neb. 792 | Neb. | 1931
This is an application for a writ of habeas corpus against the warden of the Nebraska state penitentiary. The trial court refused the issuance of the writ.
The appellant has served no part of his sentence imposed by the Lancaster county court. The delay was caused by his prosecution of error proceedings to this court and his interim conviction in Hall county. In Riggs v. Sutton, 113 Neb. 556, we held: “The time for the beginning of a sentence of imprisonment in a criminal action is not an essential part of the judgment.” See the recent case of Volker v. McDonald, ante, p. 508. Appellant relies on King v. Fenton, 119 Neb. 872, which was decided upon a question of fact and does not hold, as he contends, “that two or more sentences shall run in their proper sequence * * * in the absence of specific directions of the court to the contrary.” See Mercer v. Fenton, ante, p. 191. The appellant’s liability to the state of Nebraska was, under the two sentences in this case, five years and six months. He had discharged this liability for penal servitude to the extent of three years upon the 11th of April, 1930. He has served but a few days of the first sentence. This case is controlled by State v. Ryder, 119 Neb. 704, wherein we held: “When sentence is pronounced upon one already serving a sentence from another court, the second sentence does not begin to run until the sentence which the prisoner is serving has expired, unless the court pronouncing the second sentence specifically states otherwise.” When the mandate of this court was issued which affirmed the judgment and sentence of the Lancaster county court, the appellant was then serving another sentence.
Affirmed.