192 P.2d 849 | Okla. Crim. App. | 1948
Lead Opinion
This is an original action in habeas corpus instituted by the petitioner, J. H. Hill, to secure his release from confinement in the county jail of Oklahoma county. The petitioner was tried and convicted in the district court of Oklahoma county of the crime of receiving stolen property. On appeal to this court, his conviction was affirmed. Hill V. State,
The facts further disclose that at the time the mandate of the Criminal Court of Appeals was filed in the office of the court clerk of Oklahoma county, that the petitioner was a resident of Oklahoma county and listed in the telephone directory; that he had operated a business in Oklahoma City and had had occasion to be in the courthouse at various times on business during the period of time between July 1, 1944, and the date of his arrest on February 17, 1948.
Based on the above facts, petitioner contended that the district court of Oklahoma county had lost jurisdiction of the petitioner and jurisdiction to enforce the judgment which had been rendered by reason of the long lapse of time between the issuance of the mandate and the arrest of the petitioner.
We think this case is controlled by the decision of our court in the case of Ex parte Porter,
The law of that case as shown by the syllabus is as follows:
"The time fixed for the execution of a sentence, or the commencement of its execution, is not one of its essential elements and, where the penalty is imprisonment, the sentence may be satisfied only by the suffering of the actual imprisonment imposed.
"Where a convicted defendant is at liberty and has not served his sentence, and the same is not stayed as provided by law, he may be arrested as on escape and *321 ordered into custody on the unexecuted judgment and sentence.
"Expiration of time without imprisonment is in no sense an execution of the sentence.
"Judges, county attorneys, and sheriffs have no power or authority to pardon persons convicted in the courts of this state. The power to pardon after conviction is, under the Constitution, vested exclusively in the Governor."
In the body of the opinion it is stated:
"The uniform holding of this court is that the time fixed for the execution of a sentence, or the commencement of its execution, is not one of its essential elements, and where the penalty is imprisonment the sentence may be satisfied only by the suffering of the actual imprisonment imposed. Ex parte Eldridge,
"In Ex parte Alexander, supra, it was held that:
" 'The time fixed for execution of a sentence, or for the commencement of its execution, is not one of its essential elements, and, strictly speaking, forms no part of the judgment and sentence, which is the penalty of the law as declared by the court; while the direction with respect to the time of carrying it into effect is in the nature of an award of execution, so that, where the penalty is imprisonment, the sentence may be satisfied only by the actual suffering of the imprisonment imposed, unless remitted by death or some legal authority.
" 'Where a convicted defendant is at liberty and has not served his sentence, and the same is not stayed as provided by law, he may be arrested as on escape and ordered into custody on the unexecuted judgment. * * * *322
" ' "Expiration of time without imprisonment is in no sense an execution of the sentence." ' * * *
"In the case of Ex parte Oliver, supra, we said: 'The only way of satisfying a judgment judicially is by fulfilling its requirements. This cannot be waived, as here claimed, by the officers of court, whose duties with respect to its judgments are purely ministerial.' "
The case of Ex parte Tucker,
For the foregoing reasons, the writ of habeas corpus is denied.
BRETT, J., concurs. BAREFOOT, P. J., concurs in conclusion.
Concurrence Opinion
I concur in the conclusion reached in the majority opinion, by reason of the facts presented in this case, but cannot agree to the statement: "The only way of satisfying a judgment judicially is by fulfilling its requirements."
If it is intended by this statement to hold that no act of the court can be had or done which causes the release of one charged with a crime without serving the sentence imposed, I cannot agree that this is the law. *323 There are many instances where by unreasonable delay on the part of courts by their acts and conduct it would be improper to force a defendant to actually serve a sentence which would be contrary to law and justice.
The case of Ex parte Tucker,
