Ex parte Clendenning

• Decision Date: 11 September 1908
• Docket Number: Case Number: 268
• Parties: Ex parte CLENDENNING.
• Court: Oklahoma Supreme Court

1908 OK 184

97 P. 650

22 Okla. 108

Ex parte CLENDENNING.

Case Number: 268

Supreme Court of Oklahoma

Decided: September 11, 1908

Syllabus

¶0 CRIMINAL LAW--Sentence and Commitment--Jurisdiction after Discharge. When a judgment of imprisonment is imposed by a court on plea of guilty or conviction in a criminal case, and the same is not stayed as provided by law, the defendant should forthwith be committed to the proper officer for incarceration; and where this is not done, and the court makes an order under which the defendant is discharged from custody, it has no power or jurisdiction, after the lapse of the time involved in the sentence and after the term, to issue commitment on such judgment. Williams, C. J. dissenting.

Application by William Clendenning for writ of habeas corpus. Petitioner discharged.

Wade S. Stanfield and Barnum & McGraw, for petitioner.

Chas. West, Atty. Gen., and W. C. Reeves, Asst. Atty. Gen., for the State.

DUNN, J.

¶1 This case is an original proceeding in habeas corpus, brought by William Clendenning, who alleges that he is unlawfully restrained and deprived of his liberty by Henry Clay King, as sheriff of Creek county, state of Oklahoma. From the record in the case we gather that on December 16, 1907, the defendant was brought into the county court of that county, and in case No. 15 the following judgment was entered against him:

"Defendant appeared in person, but without attorney, and entered a plea of guilty of selling intoxicating liquors, whereupon the court ordered that he be fined $ 50 and pay costs, amounting to $ 4.15, a total of $ 54.15, and to be committed to jail until said fine and costs are paid; and it was further ordered by the court that defendant be confined in the county jail for a period of 30 days, said sentence to be suspended on good behavior."

¶2 Thereafter, and on January 21, 1908, the defendant was again arraigned before the court of said county in case No. 68 charged with the same offense, when the court entered against him the following judgment:

"Defendant waived arraignment and entered a plea of guilty whereupon the court ordered that he pay a fine of $ 75 and costs, and that he be given 30 days in jail; jail sentence suspended during good behavior. Fine and costs were paid, and defendant was conditionally discharged as shown above."

¶3 In neither of these cases was commitment issued.

¶4 Thereafter, and on June 27, 1908, after the expiration of the terms of court at which both of the foregoing judgments were rendered, and after the expiration of about five months from the date on which the last judgment was rendered, and six months subsequent to the day of the first, the court pronounced the following judgment in case No. 68:

"Now, on this 27th day of June, A. D. 1908, the same being one of the judicial days of the regular May, A. D. 1908, term of this court, the above matter came on to be heard, and it appearing to the court that on the 21st day of January, A. D. 1908, said defendant was, by judgment of this court then and there rendered adjudged, ordered, and decreed to be imprisoned in the county jail of Creek county, Oklahoma, and it further appearing to the court that said jail sentence was on good behavior of said defendant, and it now appearing to the court, from the records of this court, that the behavior of said defendant has not been good since said 21st day of January, 1908, the suspension of said jail sentence is hereby set aside and annulled, and the said judgment of this court is hereby this day ordered enforced, and the said defendant is committed to the custody of the sheriff of Creek county, Oklahoma, for imprisonment in said jail for 30 days from and after the date hereof, in conformity with said judgment of this court rendered as aforesaid on said 21st day of January, A. D. 1908. To all of which action of the court the defendant excepts. Whereupon said defendant prayed an appeal to the Supreme Court of Oklahoma, which was by this court denied, and the defendant then and there duly excepted. Whereupon said defendant asked the court to fix the amount of appeal bond, which was by the court denied, to which the defendant excepted."

¶5 And immediately thereafter, and on the same day, the court rendered the following judgment in case No. 17:

"Now on this 27th day of June, A. D. 1908, the same being one of the judicial days of the regular May, A. D. 1908, term of this court the above matter came on to be heard, and the same action was taken herein as in No. 68 Criminal, except that the sentence herein was by the court allowed to be concurrent with the sentence in said No. 68 Criminal."

¶6 Upon this action by the court and the commitment issued thereunder, the defendant was taken into custody, and this writ was by him sued out to regain his liberty. He contends that after the expiration of the term at which the judgments were rendered, and after the expiration of the time within which they would or could have been served, in the absence of escape on his part, or any appeal or other lawful procedure taken to stay the same, the court lost jurisdiction to issue commitment thereon and to require their enforcement by his imprisonment. This raises the question of whether or not a court, after delivering its judgment and sentence in a criminal case, may stay the same in the absence of appeal or other legal proceedings taken looking to its modification, and after the term at which it was rendered has expired, and after the time embraced therein has elapsed, whether it has jurisdiction to then issue commitment in execution of its judgment and incarcerate the defendant thereunder. In support of the action taken by the court we are cited by the Attorney General to a number of authorities. Those which most nearly touch the proposition, and upon which he most strongly relies, are as follows: Allen v. State, 1 Mart. & Y. (Tenn.) 294; Fults v. State, 2 Sneed (Tenn.) 232; Sylvester v. State, 65 N.H. 193, 20 A. 954; State v. Hatley et al., 110 N.C. 522, 14 S.E. 751; People ex rel. Forsyth v. Court of Sessions, 141 N.Y. 288, 36 N.E. 386, 23 L.R.A. 856; Weber v. State, 58 Ohio St. 616, 51 N.E. 116, 41 L.R.A. 472.

¶7 The case of Allen v. State, supra, was one decided by the Supreme Court of Tennessee. Allen was convicted of the crime of manslaughter at the circuit court of Green county in September 1826. He was sentenced to be imprisoned six months, and to be branded by burning on the hand, and to pay the costs of the prosecution. He asked for a stay of this judgment to enable him to make application to the Governor for a pardon, and the court in granting it was doubtless greatly influenced by the fact that the burning on the hand, if inflicted, would much impair the privilege granted by a pardon, should one be secured. The judgment was stayed under a statute to enable defendant to make such application. This case is referred to in the case of Crane v. State, 94 Tenn. 86, 28 S.W. 317, in which the statute under which the court acted in that case is cited. Defendant Crane made application for a stay of the execution of his sentence until he could likewise apply to the Governor for a pardon, and the Supreme Court of the state in reference to this matter said:

"The power of this court to grant such a suspension in a proper case is clearly given by section 6096, Mill & V. Code, as follows: 'In case of the conviction and sentence of a defendant to imprisonment, the presiding judge may, in all proper cases. postpone the execution of the sentence for such time as may be necessary to make application to the executive for a pardon or commutation of punishment.' This power and discretion was exercised by this court in the case of Allen v. State, Mart. & Y. (Tenn.) 295. It is apparent, however, from a reading of the statute, that such power and discretion to suspend execution of sentence will only be exercised in proper cases, and will not be extended to cases generally; otherwise, the course of justice would be impeded, and the Governor deluged with applications in all cases before the convicted person could be imprisoned."

¶8 The case of Fults v. State, supra, was another case from Tennessee, which was decided upon authority of the case of Allen v. State, supra. In that case the defendant was sentenced to a fine of $ 10 and two days' imprisonment. The fine and costs were secured, and there appears of record the following entry:

"On motion of defendant, David Fults, and for reasons appearing to the satisfaction of the court by admission of the Attorney General and the evidence in the case, he is permitted to enter into recognizance to appear at the next term of this court and then undergo the imprisonment adjudged against him, and abide by and perform the sentence of the court."

¶9 He appeared at the next term of court, and was ordered to be imprisoned pursuant to the judgment. From this he appealed. and the Supreme Court held that there was nothing irregular in the proceeding, and that the execution should go. The stay of the execution, it will be noted, was to a time certain, and there was nothing contingent in it. Where there is no statute, such as in this state, some few of the courts have held that a court may fix a day certain in the future on which a sentence shall begin. This was done in this case, and the Supreme Court sustained it.

¶10 The case of Weber v. State, supra, in our judgment, is not applicable, for the reason that in that case the judgment, the suspension, and the setting of the same aside all took place at the same term of court. The Supreme Court said:

"When the suspension is without express conditions, as in this case, it is within the power of the court to set aside the suspension at any time during the same term, on its own motion, and to order the sentence to be executed."

¶11 In the case at bar it will be noted that both terms of court at which these judgments were rendered had expired, that no motion for new trial or other proceeding...