113 Neb. 556 | Neb. | 1925
The wife of Warren Riggs brought habeas corpus proceedings, seeking the discharge of her husband from the-custody of the sheriff. The trial court overruled a demurrer to the sheriff’s return to the writ, and rendered judgment of dismissal. Petitioner appeals.
From the petition and return to the writ, it appears that on December 8, 1923, in a prosecution for unlawfully keeping for sale intoxicating liquor, Riggs was found guilty and, on the overruling of his motion for a new trial, the following order was entered:
“It is therefore ordered, adjudged and decreed by the court that the defendant, Warren Riggs, be confined in the common jail of Antelope county, Nebraska, for a period of sixty (60) days and that the defendant, Warren Riggs, pay the costs of prosecution. Thereupon the court gave the defendant forty (40) days in which to submit a bill of exceptions, said defendant having given notice of his intention to apply for a writ of error, and the court fixed supersedeas bond in the sum of $500, and it is further ordered that upon
Riggs did not give the supersedeas bond and did not prosecute error from the judgment of his conviction. The order for suspension of execution of sentence was conditioned upon the giving of a bond. The condition was never complied with, so there was never any valid suspension of sentence.
Section 10197, Comp. St. 1922, makes it the duty of the court, when one has been convicted of a criminal offense, to order the defendant into the custody of the sheriff and to order the issuance to him of a warrant for defendant’s commitment; thereupon,, the sheriff should immediately execute the warrant. The court, did not, however, order the defendant into the custody of the sheriff, and no warrant of commitment was issued until the 13th day of September, 1924, and long after the term of defendant’s incarceration would have expired, if it had begun on the day of sentence. It also appears that after the warrant of commitment was delivered to the sheriff he was requested by Riggs, the defendant, to delay execution of the warrant because of illness in the family of Riggs and because the latter needed time in which to harvest his crops. Finally the sheriff, at a time not definitely disclosed by the record, took Riggs into custody, and thereupon this proceeding was begun to obtain his discharge. Petitioner contends that Riggs’ sentence began to run from the date sentence was pronounced and expired 60 days thereafter, though he may have suffered no actual imprisonment, and that, therefore, his incarceration at a later date is without legal authority.
A number of cases from this and other jurisdictions are cited and relied upon to sustain petitioner’s position. The cases cited and relied upon from this jurisdiction are In re Fuller, 34 Neb. 581, and McGinn v. State, 46 Neb. 427.
In the Fuller case it was held that “the term of imprisonment of one sentenced to the penitentiary dates from the sentence and not from the delivery of the prisoner to the
We are of the opinion that the better view, the one'supported by the stronger reason and! the greater weight of authority, is that, in the absence of statute fixing the time when a sentence of imprisonment in a criminal action shall begin, it does not begin until the defendant is taken into custody or offers to surrender himself to the custody of the proper officer, and that, when a warrant of commitment has been issued and delay occurs before its execution, if defendant asks for or acquiesces in the delay, then he cannot take advantage of it. . The time for executing a sentence of imprisonment, or for commencement of its execution, is not an essential element of the sentence. The essential part of the sentence is the punishment, including the kind and amount thereof, without reference to the time that it is to be inflicted.
A case very similar to the one under consideration is that of Miller v. Evans, 115 Ia. 101. There the sentence was for a term in the county jail and the sheriff neglected to execute the mittimus until after the term of defendant’s incarceration would have expired, had it begun on the day of sentence, and it was held “that the expiration of the time without imprisonment would not be considered in satisfaction of the judgment—the time at which the sentence is to be carried out being directory, and not a part of the judgment—and a subsequent commitment to jail was authorized.” Other authorities sustaining the views herein expressed are: Ex parte Eldridge, 3 Okla. Cr. Rep. 499, 27 L. R. A. n. s. 625; State v. Cockerham, 24 N. Car. 204; State v. Abbott, 87 S. Car. 466; Neal v. State, 104 Ga. 509, 42 L. R. A. 190; Gray v. State, 107 Ind. 177; 16 C. J. 1335, sec. 3142.
The judgment of the district court is
Affirmed.