Dolan's Case

101 Mass. 219 | Mass. | 1869

Wells, J.

The petitioner seeks to be discharged on the ground that the term for which he was committed has expired by mere lapse of time; although the period of his actual imprisonment has been less than that for which he was sentenced, by reason of his escape and absence at large for nearly a year during the time.

We are of opinion that the sentence of the law is to be satisfied only by the actual suffering of the imprisonment imposed, unless remitted by death or by some legal authority. The punisment is imprisonment, the period of which is expressed only by the designated length of time. Neither the date of its commencement, nor of its expiration, is fixed by the terms of the sentence. The last clause of § 21 of the Gen. Sts. c. 174, upon which the petitioner places some reliance, can have no other purpose or effect than to require that the time which may elapse between the order and the actual commitment shall be computed as part of the time of sentence imposed by the court. See St. 1859, c. 248.

The petitioner also urges the consideration that, as the second sentence was made to take effect upon the expiration of the former sentence, a fixed time must be thereby necessarily implied, in order to give certainty to such an order. This is by no means requisite. If it were so, additional sentences would always be dependent upon the validity and the full execution without remission, of all previous ones. But the validity of such additional sentences is never affected by the contingencies which render the duration of previous terms uncertain. Kite v. Commonwealth, 11 Met. 581. The time fixed for the execution of the second sentence is not the end of the limited period from the date of the order of commitment in the first case, but the end of the imprisonment under the first sentence, however that may be legally terminated. Expiration of time without imprisonment is in no sense an execution of sentence. The period of the second sentence will not begin to run until the first has been fully performed or legally discharged. This is intimated, though not expressly decided, in Commonwealth v. Mott, 21 Pick. 492, 498. In Stevens v. Commonwealth, 4 Met. 360, 368, “ the unexpired portion of the term for which he was originally sentenced ” was held to mean the remaining period of his sentence c< at the time he made his escape.” That decision was under the Rev. Sts. c. 143, § 49, which imposed the punishment for escape, by imprisonment for a term “ in addition to the unexpired portion,” &c. The language of the Gen. Sts. c. 179, § 53, upon which this question arises, is, “ in addition to his former sentence.” We think the intention is the same, and that the construction should be the same, in the one case as in the other.

Upon this construction,' the term of the petitioner’s second sentence has not yet expired ; and as it is thus manifest that the writ, if issued, would be unavailing, the judgment upon his petition must be Writ refused.