Anthony v. Kaiser

• Decision Date: 26 February 1943
• Docket Number: 38385
• Citation: 169 S.W.2d 47,350 Mo. 748
• Parties: Clarence Anthony, alias Clarence Countee, Petitioner, v. Paul E. Kaiser, Warden Missouri State Penitentiary
• Court: Missouri Supreme Court

169 S.W.2d 47

350 Mo. 748

Clarence Anthony, alias Clarence Countee, Petitioner, v. Paul E. Kaiser, Warden Missouri State Penitentiary

No. 38385

Supreme Court of Missouri

February 26, 1943

Petitioner discharged.

Roy McKittrick, Attorney General, Ernest Hubbell and W. J. Burke, Assistant Attorneys General, for respondent.

(1) Sec. 9226, R. S. 1939, applies only to convicts sentenced to the penitentiary. (2) Criminal statutes must be construed strictly in favor of the individual and against the State. State v. Barkley, 263 S.W. 95; State v Gritzner, 134 Mo. 512; State v. Lloyd, 7 S.W.2d 344. (3) Sections such as Sec. 9226, R. S. 1939, impose an added penalty by way of a mandatory consecutive sentence, and so should be strictly construed against the State. State v. Harris, 81 S.W.2d 319; State ex rel. Meininger v Breuer, 304 Mo. 381, 264 S.W. 1. (4) The general rule is that sentences are cumulative only when the subsequent sentence contains a direction to that effect. 19 Encyc. Pl and Pr. 484; 15 Am. Jur., p. 163, sec. 465; 8 R. C. L. 242; 5 A. L. R. 377, annotations, 380; 7 L. R. A. (N. S.) 126, note; People v. Ingber, 162 N.E. 87; People v. Graydon, 329 Ill. 398; Hogan v. Hill, 9 F.Supp. 333; Zerbst v. Lyman, 19 F.Supp. 475. (5) The general rule is not changed because the sentences were to two institutions, namely, Algoa and the penitentiary. Secs. 8972, 8999, 9035, 9109, 9118, R. S. 1939; Kidwell v. Zerbst, 19 F.Supp. 475; Kirkman v. McClaughry, 152 F. 255, affirmed 160 F. 436; Zerbst v. Lyman, 255 F. 609.

Leedy, J. All concur except Gantt, J., absent.

OPINION

LEEDY

Habeas corpus. Petitioner is confined in the penitentiary. He alleges his imprisonment is unlawful for the reason his term has expired.

There is no dispute as to the facts. Summarized, they are as follows: On April 10, 1939, in the Circuit Court of Jackson County, petitioner pleaded guilty to burglary in the second degree and larceny. His punishment was fixed at two years' imprisonment on each charge, and he was sentenced to the Intermediate Reformatory for Young Men (at Algoa) for a total of four years. He was incarcerated in said reformatory until October 10, 1940, at which time he was granted a conditional commutation, or parole, by the Acting Governor. On January 11, 1941, while at large under said parole, he again pleaded guilty in the same court to an information charging burglary in the second degree, which offense was alleged to have been committed on January 9, 1941. He was sentenced on said plea to a term of two years in the Missouri Penitentiary. There was no reference to the former conviction in the latter judgment and sentence, and, consequently, no direction therein as to whether its operation should be postponed until the expiration of said former sentence.

Petitioner was forthwith incarcerated in the penitentiary under the second sentence. Thereafter, on March 12, 1941, the Governor revoked petitioner's parole (from Algoa), and consented, in writing, to his transfer from Algoa to the penitentiary, under the provisions of Section 9118 (sub-section b) R. S. '39.

Petitioner served 18 months of his first sentence at Algoa. Since the date of his transfer he has served three-fourths of the remaining or unexpired 2 1/2 years of said term, so if the second sentence (2-year sentence) runs concurrently with the first, he is entitled to his discharge under the three-fourths rule prescribed by Section 9086 R. S. '39 [Mo. R. S. A. sec. 9086.]

The case turns on the question of whether the two sentences run concurrently or consecutively. Petitioner asserts the former, and the return of respondent the latter, although respondent's brief upholds petitioner's theory of concurrent sentences, and cites many cases in support thereof. The main proposition briefed is whether, when petitioner was sentenced under his second conviction, the case was within the purview of Section 9226 R. S. '39 ^[1] [Mo. R. S. A. sec. 9226], so as to automatically, and without express direction in the second sentence, make the two cumulative, or consecutive, by force of the provision that "the [subsequent] sentence of such convict shall not commence to run until the expiration of the . . . [first]."

Penal and criminal statutes, such as the one before us "are generally 'construed strictly as to those portions which are against defendants, but liberally construed in those which are in their favor -- that is, for their ease and exemption. No person is to be made subject to such statutes by implication, and, when doubts arise concerning their interpretation, such doubts are to weigh only in favor of the accused.'" [State v. Taylor, 345 Mo. 325, 133 S.W.2d 336.]

The statute appeared in its present form as Section 1668 of the Revised Statutes of 1879, and has ever since remained unchanged. It is one of three sections which comprise Article I of Chapter 49 R. S. '39. The article is captioned "Civil Rights of Convicts." Section 9225, which immediately precedes the one in question, specifies the effect upon civil rights flowing from "a sentence of imprisonment in the penitentiary." Article II of the same chapter in relation to "Estates of Convicts" is similarly restricted to those instances where "sentence of imprisonment in the penitentiary" has been imposed. Kansas statutes with reference to the forfeiture or suspension of civil rights of convicts, and which bear a strong analogy to the foregoing were held by the Supreme Court of that state to be inapplicable to one sentenced to the State Industrial Reformatory upon conviction for rape; the court saying, "The judgment pronounced against him was simply 'that he be sent to the state industrial reformatory at Hutchinson, Kan.' His civil rights were not, therefore, forfeited. . . . Section 312 of chapter 102 of the General Statutes of 1897 provides for the appointment of a trustee to take charge of the property of a person sentenced to the penitentiary for a term less than his natural life . . . This statute, however, is not applicable to the case of plaintiff in error. He was not sentenced to the penitentiary." [Sample v. Horner, 60 P. 745. See, also, Beard v. Boston, 151 Mass. 96, 23 N.E. 826.]

An independent search of the authorities discloses Ohio had a somewhat similar statute, which provided for the trial of "a convict in the penitentiary," etc. [Section 13601, G. C. 1910], but no reported case construing it on the point at issue was found. However, it is significant that the Legislature of that state saw fit to amend the statute in 1929 by adding thereto the words "or state reformatory" thereby extending its provisions to convicts therein. [Laws, Ohio, 1929, p. 171.]

The act of 1927 by which the Intermediate Reformatory for Young Men was created expressly provided for its establishment "separate and apart from the Missouri Penitentiary . . ." It is an institution "for young men, who for the first time have been convicted of a felony." [Sections 9108, 9109 R. S. '39; M. R. S. A. secs. 9108, 9109.] But the inmates are convicts, and they are referred to as such in numerous sections of said act.

It is obvious that petitioner is not within the class of persons described in the first line of Section 9226, namely, those "sentenced to imprisonment in the penitentiary." If he is amenable to the statute at all, it is by virtue of the italicized portion of the following provision: "and if any convict shall commit any crime in the penitentiary, or in any county of this state while under sentence," etc., he shall, upon conviction, suffer consecutive sentences. This provision was brought into the act at the revision session of 1879 by an amendment which added all of the matter now contained in said section following the first semi-colon. It can hardly be thought the Legislature by using the words "any convict" in said amendment intended or meant to embrace any class of convicts other than those with which it was dealing in the first part of the same sentence, i. e., those "sentenced to imprisonment in the penitentiary." And accordingly, the words "any convict," as used therein, mean and should be construed as "any such convict." We think that meaning evident and emphasized by the proviso with which the section concludes, wherein it says, "Provided, that if such convict shall be sentenced to death, such sentence shall be executed without regard to the sentence under which said convict may be held in the penitentiary." (Emphasis ours.) We are, therefore, forced to the...