Ex parte Allen, 196 Mo. 226

Ex parte Allen

196 Mo. 226 | Mo. | 1906

GANTT, J.

The petitioner made his application at this term for a writ of Habeas Corpus, directed to the warden of the state penitentiary and prayed for an order releasing him from further confinement in said institution.

On the 14th day of June, 1902, the petitioner was lawfully sentenced by the criminal court of Buchanan county to the state penitentiary for a term of five years, from the 12th day of June, 1902, and was then remanded to the custody of the sheriff of Buchanan county to be by him conveyed to the penitentiary at the end of the said term of said court. While awaiting *230the adjournment of said court, the petitioner was confined in the common jail of said county, and on the 9th of July, 1902, by force, and by means of dynamite and powder, attempted to release and set at liberty the prisoners then in custody in said jail.

Thereupon on the 11th day of July, 1902, the prosecuting attorney of said county filed an information in said criminal court charging petitioner with the crime of attempting to release said prisoners, and petitioner was duly arraigned on said charge and pleaded guilty thereto and was sentenced to a “ term of five years in the penitentiary from the 12th day of June, 1907, when his former sentence ends.”

Thereupon prisoner was committed to the penitentiary by virtue of the two sentences, and having served three-fourths of the said first sentence for robbery and having been an exemplary prisoner is entitled to a discharge from the unexpired portion of said first term, and this being conceded he asserts he is entitled also to be discharged from his imprisonment altogether, because, he insists, his second conviction for attempting to break jail and release the prisoners therein was illegal and void because the criminal court had no jurisdiction to try him for said offense at that term, and, secondly, because if the judgment and sentence was not void for want of. jurisdiction, still he is entitled to his discharge because in law the said second sentence commenced to run on the day it was imposed and has been concurrent all the time with the first sentence and he is entitled to the benefits of the three-fourths rule as to this second sentence also and both sentences expired April 11,1906.

In his return, the warden concedes that petitioner has been a well-behaved prisoner and he is willing to give him the benefit of the three-fourths rule as to the first sentence, but is holding him under the second sentence.

*231I. Was the court without jurisdiction to try defendant for the second offense, committed after he had been tried and convicted of robbery and while he was awaiting the adjournment of the court at that term to be conveyed to the penitentiary? We have no hesitancy in holding it was not. It was a court of criminal jurisdiction and had jurisdiction to hear and determine the offense of which petitioner was convicted and over the person of petitioner. The contention of petitioner is based upon certain statutory provisions of our laws and decisions of this court, and the question is, has he properly construed the statutes and decisions of this court? We are cited by counsel for petitioner to the decision in State v. Buck, 120 Mo. 479, in support of his contention, but the facts of that case were these: The defendant had been indicted for two offenses, both of which occurred before he was tried on either. He had been convicted on one and sentenced to the penitentiary, and had appealed from said judgment and obtained a supersedeas. Pending his appeal and at a subsequent term, the court proceeded to put him on his trial for the other offense and thereupon he filed his motion to fore-go said trial until his sentence on the first trial had either expired or been set aside. The circuit court overruled this motion and he excepted and this court held that it was error to try him on the second indictment pending the former sentence then unexpired. That decision was based upon our statute and the decisions of this court in Ex parte Meyers, 44 Mo. 282, and State v. Connell, 49 Mo. 282. In Ex parte Meyers, 44 Mo. 281, this court said: “The prisoner was twice found guilty and sentenced on each finding at diffeient terms. This case does not come within the provisions of chapter 207, section 9, General Statutes 1865, which declares that when any person shall be convicted of two or more offenses, before sentence shall have been pronounced upon him for either offense, the imprisonment to which he shall be sentenced upon the second or other subse*232quent conviction shall commence at the termination of the term of imprisonment to which he shall he adjudged upon prior conviction. . . . The law certainly contemplates that after a prisoner is sentenced he will he immediately transferred to the custody of the penitentiary, and not be detained for future arraignment at subsequent terms. . . . Separate sentences can only be passed upon the prisoner in the cases and in the manner pointed out by the statute. ’ ’ It will be observed that in State v. Buck, 120 Mo. 479, the second trial pending the conviction and unexpired sentence on the first was held to be error, but it was not ruled that the circuit court had no jurisdiction. There is a marked distinction between error and an absolute want of jurisdiction. But aside from this it is clear that case is wholly dissimilar to this as to the facts. There the two indictments were both pending at one time and for crimes committed before trial on either indictment. Here the defendant was tried on the only indictment pending against him and was convicted and sentenced and he then committed the second offense for which he was tried and convicted. Section 2383, Revised Statutes 1899, provides, among other things, that “if any convict shall commit any crime in the penitentiary, or in any county of this State while under sentence, the court having jurisdiction of criminal offenses in such county shall have jurisdiction of such offense, and such convict may be charged, tried and convicted in like manner as other persons; and in case of conviction, the sentence of such convict shall not commence to run until the expiration of the sentence under which he may be held: Provided, that if such convict shall be sentenced to death, such sentence shall be executed without regard to the sentence under which said convict may be held in the penitentiary. ’ ’ The facts of this case bring it within the spirit and letter of this section. Here the defendant was a convict. He had been duly sentenced. Subsequently he had committed a crime in Buchanan *233county, a county of this State, while under such sentence, and thereupon the jurisdiction of the criminal court of Buchanan county attached to try him therefor and he was tried and convicted. A more explicit and full grant of jurisdiction applicable directly to the offense of the petitioner, can not be well conceived, and there can exist no doubt of the court’s jurisdiction, and hence the first ground upon which petitioner seeks a discharge is without foundation.

II. The second proposition is that, conceding the court had jurisdiction, still the sentence for the second offense must be held to have commenced on the day it was pronounced and both terms of imprisonment commenced and lapsed concurrently. This contention is in the face of the statute, section 2383, supra, which expressly provides that “the sentence of such convict shall not commence to run until .the expiration of the sentence under which he may be held. ’ ’ When the criminal court of Buchanan county came to sentence petitioner for this second offense committed while he was under sentence, it took notice of its own records of that term, that it had sentenced petitioner for five years from June 12, 1902, which sentence would expire June 12, 1907, and in obedience to the statute it conformed its second sentence to the expiration of that first sentence, but it added “when the former sentence ends.” If therefore the Governor or the prison authorities see fit to shorten the first sentence to three-fourths of the time, the second sentence by operation of the law and the sentence itself will commence when the first expires and the warden is properly holding petitioner by virtue of said second sentence.

The petition for discharge is denied and the petitioner is remanded to the custody of the warden to undergo his said second sentence or until he is otherwise discharged according to law.

Writ denied.

Burgess, P. J., and Fox. J., concur.