State v. Jolly

96 Mo. 435 | Mo. | 1888

Nokton, C. J.

It appears from the record in this case that in October, 18&7, defendant was confined in the jail of Cooper county undergoing a sentence of imprisonment for a misdemeanor imposed by a justice of the peace of said county; that defendant and one Forbes and one Hogan, who were also imprisoned in said jail, assaulted the jailor at the door of said jail with a billet of wood, and made their escape therefrom, They were recaptured, and, at the November term, 1887, of the Cooper circuit court, were jointly indicted and charged with escaping from said jail, and a.t said term defendant J oily entered his plea of guilty, and his punishment was then assessed by the court at six months’ imprisonment in the county jail of said county.

It also appears that, at said November term, 1887, of said Cooper circuit court, defendant and said Forbes and Hogan were also jointly indicted and charged that, on purpose and of their malice aforethought, they unlawfully and feloniously assaulted one Lewis Maupin, with a club or billet of wood, the same being a deadly weapon, and likely to produce death or great bodily harm, and beat him, the said Lewis Maupin, in the attempt to commit a felony, to-wit, the felony of unlawfully and feloniously breaking said prison and custody and escaping therefrom. To this, indictment, the defendant, at said November term, 1887, pleaded not guilty, and the cause as to him was continued to the February term, 1888, of said court, and at said term he was brought from the jail, where he was in confinement, undergoing his sentence of imprisonment for escaping from said jail, and, against his objection, he was put upon his trial, convicted and sentenced to two years •imprisonment in the penitentiary.

During the progress of the trial, defendant offered in evidence the record, judgment and sentence on .the indictment found at the November term, 1887, charging him with escaping from jail, showing that at said term he pleaded guilty to said indictment, and was sentenced to six months imprisonment in the county jail. This evidence the court refused to receive, and this action of the court is assigned as error. In the case of Ex parte Meyers., 44 Mo. 279, it is held that there “is no provision anywhere made * * * where separate sentences can be passed upon a prisoner, and he be subjected to more than one term of punishment, unless the different convictions were had at the same term, and both were obtained previous to the sentence. But there is no authority for convicting a prisoner of felony at one term of the court, and regularly passing sentence upon him, and then remanding him to jail to the next succeeding term, and again convicting and sentencing him for another felony. As a general rule, the day on which a prisoner is sentenced is reckoned as a part of his term of imprisonment; then, in legal contemplation, he is in a custody different from that of the criminal court, and cannot again be put upon his trial till he has served out the term of imprisonment assessed against him.”

Under this ruling the court erred in rejecting the evidence and trying the defendant, and for that reason the judgment is reversed.

Brace and Black, JJ., concur in the result; Sherwood, J., dissents; Ray, J., absent.