111 So. 491 | La. | 1927
On March 5, 1926, the relator, Marius Brouillette, pleaded guilty to two charges, to wit: (1) Of selling intoxicating liquor for beverage purposes; and (2) of possessing intoxicating liquor for sale for beverage purposes; this last being a second offense of the same kind. On the charge of selling, he was sentenced to 60 days' imprisonment and $200 fine, and in default of payment to serve 120 days additional; but this sentence was suspended and we are not presently concerned therewith.
On the charge of possessing intoxicating liquor for sale (second offense) relator was also sentenced to 60 days' imprisonment and $200 fine, with 120 days additional imprisonment in default of payment of the fine. This sentence was not suspended, and, as the fine was not paid, relator thereupon was due to serve a total of 180 days in prison.
On July 21st he left the hospital, but he did not return to jail, and remained at large enjoying the sunshine and fresh air, which the hospital physicians (and he himself) thought would be conducive to his better health and physical welfare. And he remained at large from July 21st, as aforesaid, until October 19th, when he returned to the *48 hospital and again remained there until November 3d, when he was finally discharged.
*49And relator now applies to this court for relief.
Hence it follows, in our opinion (and we feel sure that our view will be indorsed by enlightened public opinion generally), that a prisoner confined by illness to a hospital, whether within the confines of the prison itself or elsewhere, is entitled to count the time of such confinement against his sentence.
We may add that the record before us is not altogether clear as to the exact time when relator first went to jail, or when he first went to the hospital, and we may have given him credit for some days more than he may be entitled to; but we prefer to err on the side of mercy rather than deprive him even of a single day of the liberty to which he may be entitled, and hence we will let the matter stand as we have put it above, regardless of the possibility that relator may eventually have served some days less than he should.
The view we have taken requires of course that the refusal of the trial judge to order relator's release at this time should be approved, and accordingly that the writs herein issued be discharged.
O'NIELL, C.J., is of the opinion that the relator's sentence was for a continuous term, which has expired and been served, and that he should be released. *51