State ex rel. Estill v. Endsley
122 Tenn. 647
Tenn.
1909
Check Treatment
Mr. Justice Neil

delivered tbe opinion of tbe Court.

This was a habeas corpus proceeding, instituted before Hon. W. M. Hart, judge of tbe criminal court of Davidson county. After bearing tbe case be declined to release tbe prisoner, and remanded bim to tbe custody of tbe sheriff. Tbe prisonеr thereupon prayed an appeal to this court, and bas here assigned errors.

It appears that on March 19, 1908, the relator wаs tried ‍​​​‌​‌​​​​​​‌‌‌‌‌‌​​​‌‌​‌​​‌​​​​​‌​‌‌​​‌‌‌​​‌​‌​‍in tbe circuit court of Marshall county for selling *649intoxicating liquors without license, and was convicted and sentenced to undergo confinment for the period of six months in the county jail as a workhouse of the county, and also to pay the sum of fifty dollars fine and all costs of the cause. It was further adjudged that, in default of his paying the fine and costs, he should be confined in the said county jail until such further time after the expiration of the six months’ sentence as would be necessary to pay the finе and costs according to law. The imprisonment began on the 24th of Mаrch, 1908. He was kept in jail until the 14th day of May, 1908. On that day the sheriff, by an arrangemеnt made with the county court and one Wheeler, released the рrisoner to Wheeler, who paid his fine and costs; the prisoner cоnsenting to remain with Wheeler and work until he should be repaid. Subsequently the shеriff, having reached the conclusion that he had acted wrongfully and unlawfully in releasing the prisoner before his six months’ term of imprisonment had expired, rearrested him and put him in jail, there to remain'until his six months’ time should expire. This rearrest was made without a warrant. Upon this being done, the petitiоn for hateas corpus was sued out.

The first question is whether the sheriff acted properly in rearresting thе prisoner without a warrant. We think he should have had a warrant. We find no authority for ‍​​​‌​‌​​​​​​‌‌‌‌‌‌​​​‌‌​‌​​‌​​​​​‌​‌‌​​‌‌‌​​‌​‌​‍the sheriff’s arresting a prisoner for a crime not committed in his рresence, or in fresh pursuit, where there is sufficient time to get a warrant, even after he *650has escaped from jail. The subject is discussed in tbe case of McCaslin v. McCord, 116 Tenn., 690, 94 S. W., 79.

The second question is: Should the prisoner, for the reаson stated, be now released? We think not. The sheriff had no right to release the prisoner in the first instance, and, having again obtained the custody of him, he would hold him under the original commitment. He may have been guilty of a technical wrong in rearresting the prisoner without a warrant, and may be liable for at least nominal damages therefor; but this does not change the principle that, having regained the ‍​​​‌​‌​​​​​​‌‌‌‌‌‌​​​‌‌​‌​​‌​​​​​‌​‌‌​​‌‌‌​​‌​‌​‍custody of his prisoner, it wаs his duty to hold him under the former commitment until satisfaction of its demands. The principle is substantially the same as that which underlies the cases holding that аlthough a prisoner has been unlawfully seized in a foreign State, and brought intо a State where an indictment is pending against him, from which he has fled, he may still be held under process of the latter State, and tried on the charge, and that he will not be released in habeas corpus proceedings becausе of the original wrongful arrest or seizure. Cook v. Hart, 146 U. S., 183-195, 13 Sup. Ct., 40, 36 L. Ed., 934, and cases cited; Re Johnson, 167 U. S., 120-122, 17 Sup. Ct., 735, 42 L. Ed., 103, and cases cited.

There are two sections оf Shannon’s Code which show what the duty of the sheriff was while he yet had the prisоner ‍​​​‌​‌​​​​​​‌‌‌‌‌‌​​​‌‌​‌​​‌​​​​​‌​‌‌​​‌‌‌​​‌​‌​‍in custody. They are sections 7417 and 7424. According to section 7417 the prisoner must first serve *651out the time for which, he is sentenced, and then work out his fine and costs. According to section 7424, after the time of imprisonment hаs been served, the prisoner may he, with his consent, hailed out to any one who will secure his fine and costs. Such hail cannot he given, howevеr, until the original term has been served. It had not been served in this case, and the release on bond was premature.

It results from what has been said above that there is no error ‍​​​‌​‌​​​​​​‌‌‌‌‌‌​​​‌‌​‌​​‌​​​​​‌​‌‌​​‌‌‌​​‌​‌​‍in the judgment of the trial judge, and it must be affirmed.