Cleek v. Commonwealth

• Decision Date: 16 June 1871
• Citation: 62 Va. 777
• Parties: CLEEK v. THE COMMONWEALTH.
• Court: Virginia Supreme Court

62 Va. 777

CLEEK v. THE COMMONWEALTH.

Supreme Court of Appeals of Virginia.

June 16, 1871

1. Upon an indictment in the County court against C the jury render a verdict of guilty, and that he be imprisoned in the county jail for ten months, and pay a fine of ten dollars. No judgment on the verdict is entered at that term, nor is the case continued; but at the next term of the court the judgment is rendered. Before the ten months has expired C escapes from jail, and is afterwards retaken. HELD:

1. The cause was pending in court, and it was proper to render the judgment on the verdict at the next term of the court.

2. C is not entitled to be discharged at the end of the ten months but is to be kept in prison beyond that period, for the length of time he was out when he escaped; and this though C has been indicted for his escape.

This was a writ of error to a judgment of the Circuit court of Bath county upon an application for a writ of habeas corpus, by William C. Cleek, complaining that he was illegally confined in the jail of that county. The facts are fully stated by Judge Moncure in his opinion.

Skeen, for the appellant.

The Attorney-General, for the Commonwealth.

OPINION

MONCURE P.

This is a writ of error to a judgment of the Circuit court of Bath county, rendered on a writ of habeas corpus, awarded on the petition of the plaintiff in error, William C. Cleek, complaining of imprisonment in the jail of said county without due process of law or the legal judgment of a court. The writ of habeas corpus was prayed for and awarded on the 13th day of May 1871. The jailor returned to the writ, that " the within named William C. Cleek is detained in my jail and custody under a judgment of the County court of Bath county, by which said William C. Cleek was sentenced to imprisonment in the said jail for the term of ten months, commencing on 13th July 1870, which term the said William C. Cleek has not served out by reason of the fact that on the 21st day of September 1870, he escaped from the said jail and was not apprehended or rearrested and returned to the sail jail until the 14th day of January 1871." And the court, after hearing the matter both upon the return and other evidence, was of opinion that the petitioner was legally detained in prison, and overruled his petition and remanded him to jail. To the said judgment of the court a bill of exception was taken by the petitioner setting out the facts proved in the case. From which it appears that the petitioner, having been indicted for a felony alleged to have been committed by him in the said county of Bath by maliciously shooting, with intent to main, disfigure, disable and kill one Samuel C. Burger, was tried for the said offence in the County court of said county, and on the 13th day of July 1871, a verdict was rendered against him in these words: " We, the jury, find the prisoner guilty of unlawful shooting with intent to maim, disfigure, disable and kill, and we do ascertain that he be imprisoned in the county jail for the term of ten months, and that he pay a fine of ten dollars."

No judgment was rendered on the verdict at that term of the court. But at the next term, to wit: on the 25th day of August 1871, a judgment was rendered by the said court in the following words: " The said William C. Cleek was arraigned and tried at the last term of this court upon the indictment found by the grand jury at the term aforesaid, for feloniously and maliciously shooting a certain Samuel C. Burger with intent to main, disfigure, disable and kill the said Samuel C. Burger, and the term of his confinement in the jail of this county was fixed by the jury at ten months, and a fine assessed against him by the said jury was fixed at ten dollars, and the judgment upon the verdict aforesaid was inadvertently omitted to be rendered up against him at the term aforesaid. The said William C. Cleek was again led to the bar, in custody of the jailor of this court; and, thereupon, it being demanded of him if anything for himself he had or knew to say why the court here should not now proceed to pronounce judgment against him according to law, and nothing being offered or alleged in delay of judgment, and the court proceeding to render judgment on said verdict nunc pro tunc --It is considered by the court that the Commonwealth recover against the said William C. Cleek ten dollars, the fine by the jurors aforesaid in their verdict assessed, and the costs of this prosecution; and that the said William C. Cleek be imprisoned in the jail of this county for the term of ten months, commencing on the 13th day of July 1870; and the said William C. Cleek is remanded to jail."

It was further proved by a witness, the former jailor of the county, introduced by the attorney for the Commonwealth, that the prisoner escaped from the jail of Bath county on the 21st September 1870, and remained at liberty until 14th January 1871, when prisoner was retaken by witness and committed to jail, where he has remained ever since. " These were all the facts proved," as the bill of exceptions recites: " and the court being of opinion that the county court had a right to make the order it did, at the August term, 1870, and that the jailor had a right to hold the prisoner in confinement for the length of time he was at liberty, and that the judgment for ten months' imprisonment will not expire until he has been imprisoned for the time which elapsed during his escape (although he is indicted for escaping), overruled the petitioner's petition, and remanded him to jail, there to be confined for the period of time elapsing from 21st September 1870 to 14th January 1871.

Two questions arise in this case: First, whether the County court of Bath, having adjourned at July term 1870, without then rendering any judgment on the verdict then found by the jury in this case, had any power to render such judgment at the succeeding August term of the court? And, secondly, if the court had such power, could the plaintiff in error be lawfully detained in prison after the expiration of ten months next succeeding the verdict, and for a period equal to that...