51 Iowa 240 | Iowa | 1879
Lead Opinion
As to the first proposition it is sufficient to say that two terms of imprisonment cannot, in the nature of things, run concurrently, and the only effect of considering it so would be to remit one term.
The remaining question is as to whether the judgment in the second case is void. It is insisted by the appellant that in construing a criminal statute nothing is to be made out by inference; that a term of imprisonment must commence forthwith, if there is no other term; that if it cannot commence forthwith, by reason of one or more intervening terms, it cannot commence at all, unless it is expressly provided in the judgment, in accordance with the statute,'that it shall commence at the expiration of some other term, which was not done in this case.
Section 4513 of the Code provides that “if the judgment be imprisonment * * * the defendant- must forthwith be committed to the custody of the proper officer, and by him detained until the judgment be complied with or the defendant discharged by due course of law.” This section is applicable to every judgment of imprisonment that is rendered. It follows by necessity that if there is more than one they must follow in immediate succession. The order is not expressly determined. But the judgment first rendered should, in the absence of any provision to the contrary, be first complied with. It may be considered as rendered without reference to any other judgment, because there is no other at that time; and the statute provides in effect that the imprisonment shall ■commence forthwith. The order of the terms, then, unless otherwise provided by the court, must be regarded as determined by the order in which the judgments are rendered.
Affirmed.
Dissenting Opinion
dissenting. — Section 4513 of the Code requires that the defendant, upon conviction, be forthwith taken into custody. The evident meaning of this is that the imprisonment shall commence forthwith. This being so what authority has this court, by construction, to say the imprisonment shall commence at a day subsequent to the rendition of the judgment.
But it is said Code, § 4508, contains the requisite authority. That section, however, only applies to the District Court, and the simple question is whether that court has directed the imprisonment in either case to commence at the expiration of the imprisonment in the other. The latter section is precisely like section 4880 of the Eevision, except in one important particular. The latter provided that the judgment, where the defendant is convicted of two or more offenses, “shall be so rendered that the imprisonment upon one shall commence at the expiration of the imprisonment upon any other of the offenses.” If the court, under this statute, had failed to perform the duty enjoined, could the defendant have been held
It has been held in Allen v. Miller, 11 Ind., 389, and James v. Ward, 2 Met. (Ky.), 271, in the absence of a statute, that the court has no authority to direct that a term of imprisonment shall commence at a future day. It follows, if there is authority conferred by statute, that a failure to exercise it has the same effect as if it never existed.
But this is not all. The Code provides the court “may ” order the imprisonment to commence at a future day. The change from “shall” to “may” is to my mind significant. The Revision was mandatory; the Code permissive. In the latter a discretionary power is to be found. The District Court must be' presumed to have intended what its record shows. Having failed to direct that the imprisonment in either case should commence at the expiration of that in the other, the conclusive presumption is the court intended the imprisonment to run concurrently.
But I am not forced to rely on presumptions. The question is — First, one of power and authority, which I concede exists; and, second, whether the granted authority has been exercised. It is not claimed that it has.
In my judgment the plaintiff should be discharged.