Cameron v. Thompson

• Decision Date: 05 April 1937
• Docket Number: 32599
• Citation: 178 Miss. 434,173 So. 422
• Court: Mississippi Supreme Court
• Parties: CAMERON v. THOMPSON, SHERIFF

173 So. 422

178 Miss. 434

CAMERON v. THOMPSON, SHERIFF

No. 32599

Supreme Court of Mississippi

April 5, 1937

Division A

Suggestion Of Error Overruled April 19, 1937.

APPEAL from circuit court of Jones county HON. W. J. PACK, Judge.

Habeas corpus proceeding by Mrs. J. E. Cameron against C. H Thompson, sheriff, seeking her discharge from custody. From an order remanding her to custody, the petitioner appeals. Affirmed.

Affirmed.

A. S. Scott, of Laurel, for appellant.

This court will observe that this is not a case where the time for appeal has not passed; it has been not only six months from February, 1932, to August, 1936, but, of course, more than four years. More than four years after the suspended sentence was imposed, the court tries to reinstate the old sentence.

In this case, when appellant was rearrested, and all witnesses say she was, and officer's return clearly shows the same, then when the jail closed over her head the law made the sentence begin to run, and in the contemplation of the law she remained in the jail two years if it took that long to take care of the fine and days given her. Not over two years for the law does not allow longer punishment for misdemeanors.

Section 4058, Code of 1930.

The records show that appellant was not an escaped convict. She was taken by force out of the jail where she belonged and carried away and placed in another jail. We ask this: what if the facts were that this appellant were placed in said jail under the exact facts as shown by the record, except that she should be turned over to the federal authorities--without authority of law so to do--as in this case at bar, to serve out a twenty year sentence, then when the twenty years were up could the court below place appellant back in the county jail to serve out the balance of her fine and days? We say not. Not a case in the world holds that this can be done.

Sentences in criminal proceedings in this state will take effect and begin to operate from the date of their entry in the judgment of the court, unless some other date be inserted therein.

Braxton v. State, 60 So. 66.

If the suspended sentence is void then the original part of the sentence stands as entered in the minutes of the court and it begins to operate immediately. We say further: where the court adjourns for the term after sentencing one convicted of crime, it thereby loses all jurisdiction of the cause, if said court has no authority to render suspended sentences.

Salem v. Reo, 41 Colo. 317; 100 Me. 123; 60 A. 892.

Therefore, after the term is passed at which the original sentence was imposed, the court has no power to modify, amend or revise it or strike out any part of it; the sentence must stand as written, and in jurisdictions where the term system does not prevail, the sentence cannot be altered, charged, or modified after the sentence becomes final.

16 C. J. 1316; U. S. v. Mayer, 235 U.S. 55, 59 L.Ed. 129; 32 L.Ed. 904; Buck v. State, 60 So. 321.

Where the judge had no power to suspend a sentence and the former term had passed the court is powerless to correct its judgment.

16 C. J., sec. 3098.

Where the judgement of sentence has appeared upon the docket and a mittimus has issued, directing the proper officer to enforce the sentence, and such officer, without the sanction of the court refuses to act upon it, and without warrant of law turns the custody of the prisoner over to someone else, after the period specified in the mittimus has expired, the court will refuse to find that the prisoner has not served it and will in consequence refuse authority for his further imprisonment.

16 C. J. 1330.

Where the court does not have power to suspend sentence the sentence must not depend on any condition or contingency, nor be made subject to future decision.

16 C. J. 13034.

Where a court has no power to suspend sentence of a particular crime and does attempt to do so it thereby loses jurisdiction of said cause altogether.

Grundel v. People, 33 Colo. 191, 79 P. 1022, 108 A. S. R. 75; U. S. v. Wilson, 46 F. 748; Hawaii v. Pedro, 11 Hawaii 287; People v. Barrett, 202 Ill. 287, 67 N.E. 23, 95 A. S. R. 230, 63 L. R. A. 82.

Wm. H. Maynard, Assistant Attorney General, for appellee.

The county judge, before whom the petition for habeas corpus was heard, rendered a finding of fact on the hearing of said petition. In habeas corpus proceedings the trial judge is the trier of the facts and passes on the weight of the evidence and the judgment of the trial court must be affirmed if the evidence is sufficient to sustain it.

Cofer v. Sheriff, 131 So. 421.

The decision of the trial judge will be affirmed unless it is manifestly erroneous, either as to the facts or the law.

Parker v. Tullos, 150 Miss. 680, 116 So. 531; Stokes v. Sheriff, 154 Miss. 231, 122 So. 470.

County judge's suspension of sentence in February 12, 1932, judgment was void.

Section 2020, Code of 1930.

Appellant was subject to re-arrest where suspended sentence had not been served.

Section 4058, Code of 1930.

During the time that appellant was out of jail on the void suspension of sentence she was at all times subject to arrest for the purpose of having her serve out the suspended portion of the sentence. This point was conclusively decided in the case of Puller v. State, 100, Miss. 811, 57 So. 806, which was an opinion on suggestion of error filed in Fuller v. State, 57 So. 6; Ex Parte Bell, 56 Miss. 282; Gibson v. State, 68 Miss. 241, 8 So. 329; Bolton v. State, 166 Miss. 290, 146 So. 453.

Appellant's second contention is ingenious and interesting, but we believe is without any support in law. Appellant's theory seems to be that when she was served with notice of the motion for suspension of sentence, while she was in jail in Jones county on another charge that she commenced to serve time on the suspended portion of the sentence on February 12 1932. She follows this premise with the theory that when the authorities of Jones county turned her over to the custody of the federal authorities that she was still serving said state sentence and that during the entire time she was in the federal jail she was serving said state sentence. This contention is not borne out by the facts in the record. It is clearly shown that she was never arrested for the purpose of serving the suspended sentence until July, 1936, which was shortly before the petition for habeas corpus. She was already in the jail in Jones county when she was served with notice of a hearing to be had to revoke the period of suspended sentence. It is perfectly apparent that this notice did...