Ex parte Moody

61 So. 741 | Miss. | 1913

Smith, C. J.,

delivered the opinion of the court.

This is an appeal from a decree of a chancellor dismissing the writ of habeas corpus and remanding relator to custody. The writ was directed to the county convict manager, and, while he seems to have produced relator’s body in response thereto, he failed to file a return or answer, as required by section 2459 of the Code.

Counsel for relator in his brief states that he objected, without disclosing the method thereof, to any further proceeding unless this return or answer should be filed. An examination of the record, however, fails to disclose that any objection or protest of any character was interposed by him, and, since the decree must be reversed on another ground, we will express no opinion upon the' effect of the absence from the record of this return or answer.

It seems that relator was convicted before a justice of the peace in Perry county, in February, 1911, on a charge of larceny, and sentenced to pay a fine and serve a term of imprisonment. After being delivered to the custody of the present convict manager’s predecessor, he escaped, but was afterwards recaptured, and then tried and convicted before the same justice of the peace upon two other charges, gaming and escaping from custody, and in one sentenced to pay a small fine, and in the other to a fine and imprisonment. Under these last two sentences relator was delivered to the custody of the present county convict manager, and relator has been in his custody for a sufficient length of time, to satisfy these two last sentences. The convict manager continued, however, to detain relator in custody for the unexpired time of the first sentence imposed, and this proceeding was instituted by him to obtain his liberty.

Section 13, ch. 109, Laws of 1908, is as follows: “On delivery of every convict the sheriff or marshal, or head police officer of the municipality shall give to the person entitled to his custody a warrant of detention as authority for the detention of the convicts, unless he pay out before that time until a certain day, and such warrant shall set out that on the day named he shall discharge him and deliver to him the warrant with endorsement thereon that the convict has been duly discharged and such warrant shall be the sole authority of any person to detain a convict in custody.” Section 15 of this act provides that “the sheriff on delivering each convict shall give him a written memorandum of the date on which he is to be discharged, and he shall be entitled to have and keep it about his person at all times.”

The manager failed to produce a detention warrant authorizing him to, hold relator under any one of his convictions, and stated that no such warrant under relator’s first conviction was ever delivered to him, and that he had no knowledge of one ever having been issued. The justice of the peace was introduced, and the record of these convictions introduced in evidence. The sheriff was then introduced, and testified “that the custom for making out detention warrants was for the sheriff to use a blank book containing a form of detention warrant in triplicate, the original being delivered in any particular case tó the convict manager, one duplicate turned over to the clerk of the board of supervisors, and the third kept in said book, without being torn out, as a record in the sheriff’s office; that carbon was used in filling out the detention warrants, so that each duplicate was made with the same stroke of pen or pencil as the original; that the records in his office showed the detention warrant issued in February, 1911, by Walter Myers, sheriff, to E. M. Combs, convict manager, authorizing the detention of Frank Moody on said charge of larceny, and witness thereupon produced, at the request of the trial judge, the duplicate of said detention warrant and introduced same in evidence. Witness stated that it was in the handwriting of Walter Myers, sheriff, and that he well knew said handwriting.

Myers was the witness’ predecessor in office, and Combs was the present convict manager’s predecessor. This evidence was introduced, we presume, for the purpose of proving that a detention warrant had, in fact, been issued and delivered to the county convict manager. Assuming, but not deciding, that such proof, if made, would meet the demands of the statute, this evidence is insufficient for that purpose. It will be observed that the sheriff’s testimony simply tended to prove that a detention warrant was made out by his predecessor, but wholly failed to even indicate that it was in fact delivered to the county convict manager. Under the statute hereinbefore cited such a warrant is the sole authority under which a county convict manager can detain a convict in custody, and, in the absence of such a warrant here, relator was entitled to his discharge. “Ita lex scripta est.”

It is said, however, by counsel for the state, that under section 2447 of the Code relator is not entitled to his discharge, even though he is being unlawfully held in custody by the county convict manager, for the reason that it appears from the evidence that he has not served ont the sentence imposed upon him by the justice of the peace. In this counsel are in error. Before the court can inquire into whether or not there is a valid and unexecuted sentence outstanding ag'ainst relator, the party holding him in custody must produce a detention warrant; without it, all further inquiry is closed.

Reversed, and judgment here discharging relator from custody.

Reversed.