| Tenn. | Sep 27, 1888
The relator, Johnson, was a convict in; the penitentiary, and sued out before Judge Trewhitt a writ of habeas corpas, to be released while in service at the branch prison at Inman. On the hearing he was discharged, and the defendant, who was the Assistant Warden, having Johnson in immediate charge, representing the State, appealed.
The facts necessary to be stated for the determination of the questions, the relator makes upon the legality of his imprisonment, are as follows: Johnson ivas convicted of robbery and sentenced
This action of Judge Keid was reversed by the Supreme Court where the case was carried by cer-tiorari, and properly determined against the relator, and on April 31, 1882, he was recaptured and returned to prison. Thereupon he brought this action September 20, 1887.
In his petition he sets up, that allowing the good time which statutes previous to 1885 gave (which was one month for the first year, two months for the second year, three months for the third year, .and three months for each subsequent year, to the 10th inclusive, and four months for each remaining year of the time of imprisonment), he was entitled to an allowance of fifty-one months, which left eleven years and nine months of the sixteen years he had to serve, and that about twelve years and three months had elapsed, and he was entitled to his liberty.
There is nothing in either of these positions. If notice was necessary of a certiorari in a case of this kind, which we by no means intend to decide, it would be presumed on this collateral attack of the record of this Court unless it therein affirmatively- appeared that notice had not been given. The reversal determined the illegality of the discharge, and the time elapsing until re-imprisonment cannot be counted as time in prison. The imprisonment contemplated by the statute is confinement in fact, and not in legal or other fiction.
The Act of 1869-70, T. & S. Code, Section 5559a, Subsection 7, and the Act of 1883, M. & V. Code, Section 6338, which are identical, provides that the Superintendent of the Penitentiary shall keep a correct register of the conduct of each convict, to be termed the “ good time account,” in which he shall faithfully record the exact conduct of each convict, and each convict who shall demean himself uprightly shall have deducted from the time for which he may have been sentenced the time stated in a preceding part of this opinion: “The reduction of time herein provided for is upon the consideration of continued good conduct.”
The last Act referred to provides that “ such record shall be evidence for or against the convict in any of the courts of this State.”
Such a record is produced in this case, or rather a very imperfect one, which must be treated for the purpose of determining the question as the “record” on that subject. It contains the name, age, color, and description of the prisoner, with other things not essential to be stated here, and following these under the heading of “ remai’ks ” in respect to the prisoner, adds, “ escaped from prison December 29, 1875, by means of a driver, G-eoige Ament’ concealing him in a furniture wagon. Recaptured May 14, 1876. Attempted to escape through roof of prison August 19, 1872. Sentence
This is all that appeal’s. If we could look to the evidence, in the absence of any further record on that subject, it would appear that the prisoner’s conduct has not been such as to entitle him to all, if any, of the good time since the date of his last recorded effort to escape, but we hold that while such evidence might be heard to corroborate or sustain a record showing his conduct, or while it might be heard, if offered by the prisoner to contradict such recitations, it cannot be heard to supply one. It is the duty of the Superintendent to keep, or have kept, under his vigilant personal supervision, the record directed to be kept by the statute, and if he fails to keep it the prisoner’s right to good time shall not be left to the uncertainty of treacherous memories and oral testimony. In the absence of the record to the contrary, it will be conclusively presumed that he is entitled to the good time. The record, when properly kept, will be evidence against him, but subject to be contradicted if not in accordance with the facts. '
This is the construction which common humanity dictates as embodying the intent of the Legislature, which was to provide for the keeping of an accurate account of the conduct of the State’s prisoners by its own officers. It was intended that they should have the benefit of the time, and provision was made to ascertain accurately, at any time, how much should be given. If the State, through its
The last entry of misconduct on the part of the prisoner.is of August 19, 1877. Prior to this date the record shows sufficient misconduct to justify the denial of any “ good time.” From this date he must be allowed “ good time ” in accordance with the Act of 1869-70.
It amounts to two years eight months and twenty-three days. This deduction from the sixteen years leaves two years ten months and fifteen days which he has to serve, and for this time he will be recommitted to the penitentiary.
The only remaining question in the case is on the appeal bond. At the last term the relator failed to appear, and judgment nisi was taken
Two defenses are interposed to the demand for final judgment on the scire facias made by the Attorney-General. The first is, that he was sick, and therefore could not appear; the second, that no appeal could have been legally granted at the time, and therefore the bond is void. There is nothing in either defense, and judgment final will be entered.
The judgment of the Circuit Judge discharging defendant is reversed, relator remanded to custody, and cost adjudged against him.