Ex Parte Neisler, 16541.

• Decision Date: 17 January 1934
• Docket Number: No. 16541.,16541.
• Citation: 69 S.W.2d 422
• Parties: Ex parte NEISLER.
• Court: Texas Court of Criminal Appeals

69 S.W.2d 422

Ex parte NEISLER.

No. 16541.

Court of Criminal Appeals of Texas.

January 17, 1934.

Rehearing Denied March 28, 1934.

Appeal from District Court, Walker County; S. W. Dean, Judge.

Application by Otto E. Neisler for a writ of habeas corpus to procure his discharge from prison. From an order remanding him, relator appeals.

Affirmed.

Jno. M. Mathis, Jr., of Houston, for appellant.

Lloyd W. Davidson, State's Atty., of Austin, for the State.

LATTIMORE, Judge.

From an order remanding appellant, he has appealed. He filed an application for habeas corpus in the district court of Walker county, setting up that he was convicted of a felony on October 19, 1931, in Galveston, Tex., and given four years in the penitentiary, and that he was received at the penitentiary on April 17, 1932; that he has served two years, one month, and four days of his sentence; is entitled to five months and eighteen days' commutation for good behavior; also is entitled to one year, five months, and eight days commutation for overtime work, all of which he avers aggregates four years, and that he was entitled to his discharge from prison on November 23, 1933. Apparently being in doubt as to the proper construction of the statutes applicable, the district judge remanded appellant.

The meager statement of facts has caused us such trouble as that we were tempted to merely affirm the judgment without analysis or discussion, but the gravity of some matters of procedure on the part of prison officials of much importance, if in error, is so strongly suggested as that we express our views. The statement of facts referred to consists almost entirely of two purported prison records of this appellant, "figured both ways," as stated by appellant's attorney when he introduced said purported records. The records are but conclusions, the result of computations, and are signed by Lee Simmons, General Manager, by W. M. Thompson, Chief Bureau of Records and Identification, E. A. S. We do not know how much weight was given to these documents by the learned trial judge.

As above stated, this conviction was on October 19, 1931. Prisoners are entitled to credit on their sentences for time spent in jails after conviction and sentence, hence this appellant would be entitled to credit on his four-year sentence for the five months and twenty-eight days between October 19, 1931, and April 17, 1932, when he was received at the penitentiary, but not entitled to any overtime credit for work done before said date.

Chapter 212, Acts Regular Session, 40th Legislature, 1927 (Vernon's Ann. Civ. St. art. 6166a et seq.), contains our law on commutations for good behavior, and in terms says, in fixing commutation therefor: "Two days per month off of the first year's sentence; three days per month off of the second year of sentence; four days," etc. Section 23 (Vernon's Ann. Civ. St. art. 6166v). Under all the authorities, the word "month" in such usage means a calendar month. See Words and Phrases, Third Series, vol. 5, page 209, citing many authorities. The specific words "Per month" in such use are construed to mean a calendar month. Frazier v. Nashville Veterinary Hospital, 139 Tenn. 440, 201 S. W. 751, 139 Tenn. 440. It is said in State Board of Charities and Corrections v. Combs, 193 Ky. 548, 237 S. W. 32, 37: "The Board * * * could not determine whether the prisoner had been of good conduct and was entitled to a credit for good behavior for one month until the month had expired." It is not doubted that our law regarding punishments, sentences, and commutations thereof must be reckoned in terms of calendar days, months, and years, i. e., in days twenty-four hours long, so many of which make up the calendar months as they come in due order, twelve of which make up a calendar year. In our view, appellant could in no event claim commutation for good behavior, in excess of the two days off for each calendar month of the first year of sentence, amounting to twenty-four days; and three days per month for the second year of sentence, amounting to thirty-six days, plus four days per calendar month for each month of the third year of actual service, amounting on November 23d to about three days, or a total of sixty-three days.

When we come to consider appellant's claim for credit upon his sentence, for one year, five months, and eight days overtime work, we are confronted with a serious proposition. All the provisions of title 108, Rev. Civ. Stats. 1925 (article 6166 et seq.),—save such as related to the board of pardons—were expressly repealed by chapter 212, Acts Regular Session, 40th Legislature. Section 25 of said chapter was amended by chapter 229, Acts Regular Session, 41st Legislature (Vernon's Ann. Civ. St. art. 6166x), in which last act appears our present law regarding credits for overtime work which should be given convicts in our penitentiary under the control of our prison board. It provides that a workday for a convict shall be ten hours of work, and then further provides that, when there is work "necessary and essential to efficient organization of convict...