Ex parte Durbin
| Decision Date | 15 December 1890 |
| Citation | 14 S.W. 821,102 Mo. 100 |
| Parties | Ex Parte Durbin |
| Court | Missouri Supreme Court |
Writ denied.
F. E Luckett and Silver & Brown for petitioner.
Section 3954, Revised Statutes, 1889, declaring that imprisonment upon a second or subsequent conviction shall commence at the termination of the term of imprisonment adjudged upon the prior conviction, is simply declaratory of what the law would be without its enactment. The court could, without the authority of the statute, pass cumulative sentences and make one begin at the termination of the other. 1 Bish. Crim. Law [7 Ed.] sec. 953; State v. Smith, 5 Day, 175; Kite v. Com., 11 Met. (Mass) 581; Russell v Com., 7 Sar. & R. 489; United States v Patterson, 29 F. 775; In re Jackson, 3 McArthur (D C.) 24; In re Fry, 3 Mackay (D. C.) 135. The statute does not dispense with the necessity of embodying in the judgment itself the beginning of each term, and where this is not done the sentences will all begin to run from the same date and all will end with the termination of the longest. In re Jackson, 3 McArthur (D. C.) 24; United States v. Patterson, 29 F. 775; Whar. Crim. Pl. & Prac. [8 Ed.] sec. 932; Pickett v. State, 22 Ohio St. 405, and cases cited; Ex parte Bryan, 76 Mo. 253.
John M. Wood, Attorney General, contra.
Habeas Corpus.
-- A writ of habeas corpus was recently issued to the warden of the penitentiary at the instance of petitioner, to determine the legality of the latter's imprisonment there. The warden's return shows that the petitioner is held upon three commitments pursuant to three sentences by the criminal court of LaFayette county, one of which is for a term of three years for burglary in the second degree; another for a like term on another charge of the same nature; and the other for a term of five years for burglary in the second degree and grand larceny, all of March 13, 1885.
None of the sentences names a date for the commencement of the term of imprisonment thereunder; but all contain the usual language committing defendant to the custody of the sheriff to be by him removed to the penitentiary, etc.
Counsel for petitioner urge that the periods of imprisonment adjudged must be taken as concurrent, and that he is now entitled to discharge, having served the time named in the longest sentence.
The case falls within the purview of that section of the criminal law which provides that "when any person shall be convicted of two or more offenses, before sentence shall have been pronounced upon him for either offense, the imprisonment to which he shall be sentenced upon the second or other subsequent conviction shall commence at the termination of the term of imprisonment to which he shall be adjudged upon prior conviction."
Twenty years ago this court definitely held that when several sentences were pronounced against the same defendant, as mentioned in the section quoted, it was not necessary for the trial court to expressly adjudge or declare that the second or later term of imprisonment should begin at the close of a former term imposed. It was then considered that the language of the law itself fixed the time when the second or later period of confinement should commence. Ex parte Turner (1870), 45 Mo. 331.
The statute was obviously designed to remove any such complications, confusion or injustice as might arise under a contrary rule. The duration of any particular term of imprisonment may possibly be abridged by the intervention of the pardoning power of the executive or by the good behavior of the convict under the "three-fourths rule" (R. S. 1889, sec. 7273), or by reversal of the judgment of conviction. Should such abridgment occur it would clearly be desirable, in the interest of the prisoner as well as of the state, to have the second term of sentence begin immediately thereupon.
But it is probably unnecessary to repeat the reasons on which the ruling in Ex parte Turner, 45 Mo. 331, was based. Since the announcement of that decision there have been two general revisions of our statute law. At each of them the section in view has been re-enacted in the same words. Such being the case it must be held (according to an...
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