Ex parte McDonald

• Court: United States State Supreme Court of Wisconsin
• Citation: 178 Wis. 167,189 N.W. 1029
• Parties: EX PARTE MCDONALD.
• Decision Date: 10 October 1922

178 Wis. 167

189 N.W. 1029

EX PARTE MCDONALD.

Supreme Court of Wisconsin.

Oct. 10, 1922.

Original application for writ of habeas corpus by Elmer McDonald, alias Robert E. Borton. Writ granted, and petitioner's discharge directed.

Original application in this court for a writ of habeas corpus.

November 5, 1908, the petitioner, Elmer McDonald, alias Robert E. Borton, was duly convicted in the municipal court for Milwaukee county of the charge of assault with intent to rob, and sentenced to and then commenced to serve a term of 12 years in the Wisconsin State Prison at Waupun.

July 21, 1915, the state board of control duly released the said petitioner upon parole.

On November 30, 1915, he was convicted in the same municipal court for the offense of burglary and then sentenced for a term of 12 years then commencing in the Wisconsin State Prison.

On October 1, 1918, such second sentence was, by the Governor, duly commuted to a term of six years.

It is conceded that on February 28, 1920, his second sentence, commuted as above stated and taking into consideration the credit he was entitled to and allowed under the statute for good behavior, terminated.

On November 5, 1920, the full period of the 12 years under the first sentence of November 5, 1918, terminated. He was, however, still detained in confinement in said prison after said date.

On August 3, 1922, petition was made on his behalf for a writ of habeas corpus, and upon hearing had it was ordered that the writ should issue, and in response thereto the petitioner was produced in court by the warden of the state prison at the time fixed in the said writ for the return thereto on September 12, 1922, and then and there ordered discharged.Arthur H. Bartelt and Thomas Leahy, both of Milwaukee, for petitioner.

Wm. J. Morgan, Atty. Gen., opposed.

ESCHWEILER, J. (after stating the facts as above).

Upon the hearing of this matter the assistant attorney general, appearing on behalf of the warden, very frankly conceded that there was no warrant in law for the continued confinement of said petitioner in state's prison, and for that reason no formal return was made or objection interposed to the granting of the petitioner's prayer for his discharge.

It has been requested, however, and it is deemed advisable, that the situation presented under the record should be discussed.

Apparently the theory upon which the petitioner was detained in confinement subsequent to the period when, under the full letter of the first sentence his term had expired, was that he having violated the terms and conditions of the parole granted to him in July, 1915, the further running of such first sentence should be deemed suspended during the period that he was under confinement by virtue of his second conviction in November, 1915, and that he then could, after the expiration of the second term which commenced upon his conviction in November, 1915, he compelled to still serve such portion of his first sentence as remained unserved at the time of such second conviction. In other words, that his first sentence was in effect suspended during the period of his service under the second sentence and could then be revived and tacked on at the expiration of such second sentence.

It was early declared in this state that a court may, upon conviction of a defendant at one time of several distinct offenses, direct that the term of imprisonment fixed as a penalty for one of such offenses shall commence at the expiration of the term fixed as the penalty for the conviction at the same time of another offense. In re McCormick, 24 Wis. 492, 1 Am. Rep. 197; 16 C. J. 1370; note 7 L. R. A. (N. S.) 124; 8 R. C. L. p. 240.

This was in effect recognizing the power of the court in passing sentence at one time for more than one offense to provide that the term of sentence for one of such offenses may begin at some day in the future instead as of the day of sentence. State v. Grottkau, 73 Wis. 592, 41 N. W. 80, 1063, 9 Am. St. Rep. 816.

Such declared power of the court as expressed in the cases above cited received legislative approval in the revision of section 4733, Stats., as proposed by the revisors in 1898; there being then added to section 4733 as it had been found in the Revision of 1878 the following words still found in said section, namely:

“Provided, that when any person is convicted of more than one offense at the same time the court may impose as many sentences of imprisonment as the defendant has been convicted of offenses, each term of imprisonment to commence at the expiration of that first imposed, whether that be shortened by good conduct or not.”

But of course the situation here presented does not come within such rule declared in the decisions or by statute.

In the Revised Statutes of 1878, section 4733 read as follows:

“The sentence of any...