Dickerson v. Perkins
| Decision Date | 09 February 1918 |
| Docket Number | 32163 |
| Citation | 166 N.W. 293,182 Iowa 871 |
| Parties | TOM DICKERSON, Appellant, v. J. R. PERKINS, Appellee |
| Court | Iowa Supreme Court |
Appeal from Lee District Court.--W. S. HAMILTON, Judge.
THIS is a habeas corpus proceeding. A writ was issued, and a hearing had in the district court. The plaintiff is a convict in the penitentary at Fort Madison. The defendant is the warden. The question involved is whether the plaintiff's prison term has expired. The trial court denied his petition, and he appeals.--Reversed and remanded.
Reversed and remanded.
John E Craig, for appellant.
H. M Havner, Attorney General, F. C. Davidson, Assistant Attorney General, and J. M. C. Hamilton, County Attorney, for appellee.
The plaintiff was committed to the penitentiary under two sentences of imprisonment of five years each. Indictments for larceny were found against him in the counties of Boone and Dallas. On October 10, 1913, the district court of Boone County entered judgment against him upon a plea of guilty, and imposed the maximum sentence. A mittimus was immediately issued, and the judgment was executed by the sheriff of the county, by delivery to the warden of the mittimus and the custody of the defendant. On November 21, 1913, he was brought from the penitentiary to Dallas County, to stand trial upon the indictment there. On said date, judgment was again entered against him upon a plea of guilty, and the maximum sentence of imprisonment was again imposed. A mittimus was also issued hereon, and the judgment executed in like manner as before, by the delivery of the mittimus and the custody of the prisoner. The question in dispute is whether the two sentences ran concurrently from the date of the delivery of the last mittimus and the surrender of the prisoner, or whether the execution of the second sentence should be deemed to have been postponed until the expiration of the term of the first. Section 5439 of the Code provides:
"If the defendant is convicted of two or more offenses, the punishment of each of which is or may be imprisonment, the judgment may be so rendered that the imprisonment upon any one shall commence at the expiration of the imprisonment upon any other of the offenses."
In the Revision of 1860, the section corresponding hereto (Section 4880) provided that, where the defendant is convicted of two or more offenses, the "judgment shall be so rendered that the imprisonment upon one shall commence at the expiration of the imprisonment upon any other of the offenses." This section was amended, and appears in the Code of 1873 as Section 4508, as follows:
"If the defendant is convicted of two or more offenses [before judgment on either], the punishment of each of which is, or may be, imprisonment, the judgment may be so rendered that the imprisonment upon any one shall commence at the expiration of the imprisonment upon any other of the offenses."
This section was later amended by the elimination of the words which we have enclosed in brackets. In the case at bar, the judgment in the second case was not "so rendered that the imprisonment upon it should commence at the expiration of the imprisonment" upon the first offense. Needless to say, there was no such provision in the first judgment. There was not, at that time, any other conviction to be considered.
If Section 4508 of the Code of 1873 had not received consideration in an earlier decision of this court, we should have little trouble in construing Section 5439 as supporting the contention of the plaintiff. The clear implication of this section is that terms of imprisonment may be concurrent. Power is therein conferred upon the court to so render the judgment as to make them otherwise. The power thereby conferred operates, to some extent, as a modification of the requirements of Code Sections 5443 and 5444, which require an immediate execution of the judgment, by delivery of the custody of the defendant to the warden of the penitentiary. The original form of this enactment, as it appeared in the Revision of 1860 with the subsequent amendments thereto, is suggestive. Under Section 4880 of the Revision, as above quoted, it was mandatory upon the court, where two or more convictions were had, to so render the judgment that imprisonment upon one should commence at the expiration of the imprisonment upon another. In the amended statute, as it appears in the Code of 1873, Section 4508, the mandatory requirement was withdrawn, but the power was still conferred upon the court. The conferring of this power of discretion upon the court required it to determine whether the imprisonment upon one sentence should begin at the expiration of the imprisonment upon another. If yea, the judgment must be "so rendered." If the judgment be not so rendered, the statute confers no power upon any other official to hold the custody of the convict beyond the term that appears upon the face...
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