Ex Parte Durbin

• Decision Date: 15 December 1890
• Citation: 102 Mo. 100,14 S.W. 821
• Parties: Ex parte DURBIN.
• Court: Missouri Supreme Court

14 S.W. 821

102 Mo. 100

Ex parte DURBIN.

Supreme Court of Missouri.

December 15, 1890.

IMPRISONMENT — SEVERAL SENTENCES — EXPIRATION OF TERM — HABEAS CORPUS — PLEADING.

1. Under Rev. St. Mo. 1889, § 3954, providing that "when any person shall be convicted of two or more offenses, before sentence shall have been pronounced upon him for either offense, the imprisonment to which he shall be sentenced upon the second or other subsequent conviction shall commence at the termination of the term of imprisonment to which he shall be adjudged upon the prior conviction," it is not necessary for the trial court to expressly adjudge that the later term shall begin at the close of a former term imposed; and one convicted and sentenced on the same day to three several terms of imprisonment, upon three several charges, cannot be liberated at the expiration of the longest term imposed, on the ground that the terms must be taken as concurrent, and not as consecutive.

2. The facts stated in the return to a writ of habeas corpus will be taken as true, without reference to the allegations in the petition, unless issue as to these facts is raised by an appropriate pleading on the part of petitioner.

Habeas corpus.

F. E. Luckett, for petitioner. The Attorney General, for respondent.

BARCLAY, J.

A writ of habeas corpus was recently issued to the warden of the penitentiary, at the instance of petitioner, to determine the legality of the latter's imprisonment there. The warden's return shows that the petitioner is held upon three commitments, pursuant to three sentences by the criminal court of La Fayette county, one of which is for a term of three years, for burglary in the second degree, another for a like term, on another charge of the same nature, and the other for a term of five years, for burglary in the second degree and grand larceny, all of March 13, 1885. None of the sentences names a date for the commencement of the term of imprisonment thereunder, but all contain the usual language, committing defendant to the custody of the sheriff, to be by him removed to the penitentiary, etc. Counsel for petitioner urge that the periods of imprisonment adjudged must be taken as concurrent, and that he is now entitled to discharge, having served the time named in the longest sentence. The case falls within the purview of that section of the criminal law which provides that "when any person shall be convicted of two or more offenses, before sentence shall have been pronounced upon him for either offense, the imprisonment to which he shall be sentenced upon the second or other susequent conviction shall commence at the termination of the term of imprisonment to which he shall be adjudged upon prior conviction." Rev. St. Mo. 1889, § 3954. Twenty years ago, this court definitely held that when several sentences were pronounced against the same defendant, as mentioned in the section quoted, it was not necessary for the trial court to expressly adjudge or declare that the second or later term of imprisonment should begin at the close of a former term imposed. It was then considered that the language...