Ex parte Meyers

• Decision Date: 31 July 1869
• Citation: 44 Mo. 279
• Parties: Ex parte GEORGE MEYERS.
• Court: Missouri Supreme Court

44 Mo. 279

Ex parte GEORGE MEYERS.

Supreme Court of Missouri.

July Term, 1869.

Petition for habeas corpus.

Lay & Belch, attorneys for petitioner, cited 2 Metc., Ky., 271; 11 Ind. 389.

H. B. Johnson, Attorney-General, for respondent, cited State v. Truman, 44 Mo. 181; Gen. Stat. 1865, §§ 35-6.

WAGNER, Judge, delivered the opinion of the court.

The petitioner states that he is illegally detained, confined, and restrained of his liberty in the penitentiary of the State of Missouri; that he is illegally held and restrained under two commitments and judgments of the St. Louis Criminal Court, rendered at its March term, 1866--the first of the date of March 31, 1866, for the term of two years, and the second at the same term of the Criminal Court, of the date of June 8, 1866, for the term of three years, and that the time for which the petitioner was committed has expired; and he prays that he may be released and discharged. Copies of the records of conviction and commitment are annexed and made exhibits.

The counsel for the petitioner is evidently mistaken in supposing that both convictions and sentences were had and passed at the same term of the Criminal Court. The record shows that at the March term, 1866, the prisoner pleaded guilty to a charge of grand larceny, and was sentenced at the same term to imprisonment for two years. At the May term, 1866, he was tried on another indictment for grand larceny, and found guilty, and his punishment assessed at three years' imprisonment in the penitentiary, upon which assessment he was duly sentenced and committed at the same term. It must be borne in mind that the St. Louis Criminal Court holds six terms a year. The prisoner was twice found guilty, and sentenced on each finding at different terms.

This case does not come within the provisions of chapter 207, section 9, of General Statutes, which declares 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 prior conviction. This section applies only where a person is convicted of two or more offenses at the same term, and both convictions must take place before the sentence is pronounced in either case. The law certainly contemplates that after a prisoner is sentenced he will be immediately transferred to the custody of the penitentiary, and not be detained for future arraignment at subsequent terms. If such a course of practice had been intended, the statute would surely have made some provision for it. When a person, in committing a burglary, also commits a larceny, he may be prosecuted for both offenses in the same count, or in separate counts of the same indictment; and, on conviction, he may be punished not only for the burglary, but an additional term for the larceny. (Gen. Stat. 1865, p. 785, § 19.) But the additional punishment rests upon an express statutory provision. In the present case there is...