73 W. Va. 744 | W. Va. | 1914
Lead Opinion
Nick Pisher was convicted iipon an indictment charging him with feloniously escaping from jail, by force and violence, in violation of Sec. 11, Ch. 147, serial section 5259, Code 1913, and was sentenced to one year’s confinement
Under a statute permitting the conviction of a person for crime to be shown in order to affect his credibility as a witness, the supreme court of Massachusetts, in Commonwealth v. Gorham, 99 Mass. 420, held that conviction implied a judgment of the court. Likewise, under a statute making void' the license of a person to sell intoxicating liquors who shall be convicted of violating the liquor laws, it was held that a final judgment of the court conclusively establishing guilt was essential. Commonwealth v. Keiley, 150 Mass. 325. Under an Illinois statute declaring persons convicted of any of the crimes, therein enumerated, to be deemed infamous and disqualifying them from holding any office of honor, trust or
The writ of error stayed the proceedings in the court below, and it was necessary to await determination of the appeal before it could be known whether defendant was finally adjudged to be guilty, which is the meaning of the term conviction in the statute above quoted.
To constitute escape from prison a crime, in any event, it is essential that the prisoner be lawfully in custody. 11 A. & E. E. L. (2nd ed.) 304; 16 Cyc. 540; 1 Russell on Crimes (7th Eng. ed.) 566. But, as the indictment, was held to be good and the judgment not void, but only voidable, it. can not be said that the prisoner’s confinement in jail, awaiting the judgment of this court on writ of error, was unlawful.
The mandate of this court, reversing the judgment below and discharging the prisoner, was admissible to prove his innocence of the crime of which he had been adjudged guilty, and that he was not confined in jail under final judgment of conviction for a felony. The mandate was conclusive proof that he was not guilty, because it discharged him from the indictment. Not having been adjudged guilty in that ease, he should have been discharged on the trial of this indictment. The record discloses that the prisoner can not lawfully be convicted of the crime for which he stands indicted, and we, therefore, reverse the judgment and discharge defendant from further prosecution under that indictment.
Reversed and Prisoner Discharged.
Dissenting Opinion
(dissenting):
The statute certainly means what it says. It plainly says that “a person confined in a jail on conviction of a criminal offence, who escapes thence by force or violence, shall be confined in the penitentiary one year, if previously sentenced to
There is nothing in the statute warranting the view that the provision quoted above embraces only one whose conviction shall not be reversed on appeal or otherwise set aside. It designates no such person. It does, however, designate any one who is in jail under conviction of a felony. And it forbids him to break jail while he has such status, on penalty of one year in the penitentiary. Yet the majority say that if, after he breaks jail, his status changes by a setting 'aside of the conviction, he has committed no crime under this particular provision of the statute. That is indeed saying that one erroneously convicted of a felony and sentenced therefor, .though lawfully imprisoned by the judgment of a court of competent jurisdiction, may break jail without violating the very provision that fits his ease. Then certainly, one who is advised that his conviction and sentence is erroneous and must be reversed on appeal has strong encouragement to ignore the law that in- terms applies to him.
The statute- as a whole, Code 1913, ch. 147, secs. 11 and 12, was intended to protect our jails from force and violence, and further to secure a holding of those convicted of crimes until-the day of their punishment. The particular provision quoted above was intended to give significant notice to one convicted of a felony and sentenced to the penitentiary therefor that his very status of a sentenced convict put on him heavier punishment for jail breaking than he otherwise would have, so as the greater to- restrain him in custody to respond to such conviction and sentence. It was intended to leave to one confined in jail under sentence to the penitentiary no hope of escape by jail breaking while so confined, without facing a punishment commensurate in degree to that for which he was -already sentenced. Thus it was intended indeed to assist the jailor. But the majority opinion now tells one convicted and sentenced for felony that he may be his own
That the defendant was under conviction and sentence for a felony when by force and violence he broke jail can not be gainsaid. The pendency of his writ of error did not set aside the conviction and sentence. It only operated to stay the carrying out of the sentence. All pending the writ of error he was still one under conviction. “The writ of error does not in fact supersede the judgment of conviction in a felony case, but under our law only operates a stay of proceedings in the case, after a writ issues, until the decision of the Supreme Court of Appeals.” State v. Conners, 20 W. Va. 10.
The majority opinion holds that a judgment of court is' necessary to constitute a conviction. Grant that, the judgment of a court of competent jurisdiction had been passed on the defendant, prior to his prison breach, sentencing him for a felony and giving him the status of a person against whom the statute in question is directed. He was lawfully imprisoned under judgment of a court.
Resort is made to the last clause of the section, which says the term of confinement is to commence froto the expiration of the former sentence. How does this clause change the description of the person against whom the statute is directed? It is no part of the language describing him. It'is a mere direction as to the administering of the punishment in case the former sentence is to be served. It means no more than that the former sentence shall expire before the sentence for jail breaking begins. If, as in this case, the former sentence expires by a reversal and discharge before the fixing of the sentence for jail breaking, the latter sentence necessarily begins thereafter. The clause can not in reason be held to mean that there must be a serving of the former sentence to justify a sentence for jail breaking. Suppose this court had affirmed the former sentence and the Governor had immediately pardoned the defendant, would sentence for the jail breaking fail simply because it could not begin immediately on the expiration of a former sentence? The position is
It has invariably been considered heretofore that if one was lawfully imprisoned, though he was afterwards acquitted or discharged as groundlessly held, he was, pending the proceedings against him, subject to the law against prison breach. True, it was anciently held that one unlawfully confined' — one held without any legal warrant — was not so subject. But we have no such case. Here the imprisonment from which the defendant broke away was legal. All must admit that. It was not false imprisonment. He was lawfully charged and held until the appellate court declared his conviction and sentence to be erroneous and discharged him therefrom. He was under conviction and sentence for a felony until that time. Though error was committed on his trial, still he was legally held under conviction and sentence for a felony at the time he broke jail, pending the final determination of.the case against him on appeal. The change of the defendant’s status by the decision on appeal no more relieved him from indictment under the particular provision of the statute applying to him theretofore, than a change of status by a finding of innocence would relieve from the common law of prison breach.
Now, what are the authorities? We shall refer to a few of them. While the subject with us is controlled by our statutory provisions, Code 1913, eh. 147, secs. 11 and 12, still their spirit and purpose is no;t different from that of the common law, nor from that of the statutes of other states. By the common law, as modified by 1 Edward 2, de- frangentibus. prisonam, and by the adjudication of other states, it has not been considered, as the majority of this court now in fact consider it, that simply because the charge on which one was imprisoned proved groundless in the end, he was therefore acquit of a breach of the imprisonment. Thus in principle it has not been considered that simply because a conviction and sentence for a felony under which one was lawfully held in jail proved erroneous and unwarranted on appeal, he was thereby acquit of indictment under the provision of a statute making him guilty of felony for breaking jail while so held therein. It was laid down unreservedly by Lord Coke,
Says Mr. Bishop: “If the imprisonment is lawful, though in fact the prisoner is innocent, he commits this offense when he breaks the prison and escapes.” 2 Criminal Law (New), sec. 1074. And again: “If, the law’s process being on a man, he is duly imprisoned, the crime of prison-breach is committed when he breaks away, being innocent, the same as though he were guilty.” 1 Criminal Procedure (New), sec. 91. Another great writer on criminal law says: “It is enough to sustain the prosecution if the process were regular, and the imprisonment prima facie authoritative, though mere technical informalities in the process will be no defense. The question of the defendant’s guilt or innocence is not relevant to the issue.” 3 "Wharton’s Criminal Law (11th ed.), see. 2005. Can anyone say that the law’s process was not .on the defendant by his conviction and sentence at the time
In- discussing statutes similar to ours, the supreme court of Kansas said that which is pertinent and applicable here: “If said section 183 is to be construed as the defendant claims that it should be construed, then it would be improper in any case to try a defendant for an escape until after a trial and conviction upon the original charge; for if he should by any means procure an acquittal upon the original charge, or a dismissal of the case, or a nolle pros, to be entered therein, then he would not have been guilty of committing any offense by making such escape. When a party is in legal custody, and commits an escape, we do not think that it depends upon some future contingency as to whether such escape is an offense or not.” The State v. Lewis, 19 Kans. 260.
While the majority do say that the defendant is not altogether acquit of the prison breach because his conviction is reversed, yet their decision virtually acquits him. They say he may be indicted under section 12. But how can he be indicted under that section? It expressly applies to none other than one not sentenced at the time of the jail breaking. That section can never be made to fit the defendant’s case, since at the'time he broke jail he was by the record under sentence. He could not be indicted under it either before or after the reversal. Por, a grand jury at no time could describe his status at the time of the jail breaking other than as one under sentence. Section 12 applies only to one not under sentence. Moreover, if section 12 could be invoked, it could not be until after determination on appeal that prosecution
The defendant was indicted and convicted for jail breaking under the particular provision of the statute fitting his description at the time he broke jail. Plainly the judgment should be affirmed.