In re Wilson

11 Utah 114 | Utah | 1895

Merritt, C. J.:

The petition alleges that the petitioner is imprisoned .-and unlawfully restrained of his liberty by the United .States marshal of Utah territory, by imprisonment in the Utah penitentiary. That said imprisonment is illegal, and without any probable cause. That the illegality thereof ■consists in this: That on the 28th day of February, 1890, in the Third District Court of Utah, the petitioner pleaded .guilty to eight indictments, each charging him with the crime of grand larceny. That the said offense in each indictment • charged was the taking of a horse, eight horses having been taken, from eight several owners. On March 3, 1890, the said court rendered judgment in the said eight, cases, and sentenced the petitioner to imprisonment in the-TJtab penitentiary for a term of one year on each indictment. The cases were numbered in the district court 555, 556, 557, 558, 559, 560, 561, and 562. The sentence in said district court, in case No. 555, was for the term of' one year. The sentence in case No. 556 was for the term of one year, to commence and be in force immediately after the expiration of the sentence in case No. 555, and. so on through the eight cases. Thus the sentences were made cumulative, each commencing at the expiration of a. preceding sentence, the aggregate of the sentences being-eight years. The petition is based on the ground that there-is no authority of law to impose cumulative sentences. To the petition the XJnited States district attorney filed a. demurrer, on the ground that the facts stated in the petition did not entitle the petitioner to a discharge until the-expiration of the several terms of imprisonment.

• Our statutes are silent on the subject, there being no-legislation by the territory directing the courts as to the-mode of procedure. We must therefore resort to the common law for a solution of the question. By the act of' congress to establish a territorial government for Utah, among other things, it is provided “that the supreme-court and the district court, established by said act, shall possess chancery as well as common-law jurisdiction.”' Clawson v. U. S., 114 U. S. 477, 5 Sup. Ct. 949. 1 Bish. Cr. Law (7th ed.) § 953, states the law as follows: “When a prisoner, under an unexpired sentence of imprisonment,, is convicted of a second offense, or where there are two or more convictions on which sentence remains to be pronounced, the judgment may direct that such succeeding period of imprisonment shall commence on the termination of the period next preceding.” In volume 1 of Bishop’s Criminal Procedure (section 1310) the rule isT stated as follows: “And at common law, if a sentence to' imprisonment is to commence running on the expiration! of another, it must be so stated, else the two punishments: will be executed simultaneously.'” As before stated in this case, each sentence was to commence at the expiration of the next preceding one. In the case of People v. Forbes, 22 Cal. 135, it was ruled that “a judgment in a criminal action that the defendant be imprisoned for a specific term, to commence at the expiration of previous sentences, is valid, and warrants the detention of the defendant for the aggregate period for all of the sentences.” See, also, Martin v. People, 76 Ill. 499; Johnson v. People, 83 Ill. 431; Ex parte Dalton, 49 Cal. 463; In re Packer, 33 Pac. 578. The writ is denied.

BaetCH, Smith, and King, JJ., concur.