Ex Parte Sargood

• Decision Date: 10 June 1912
• Parties: EX PARTE SARGOOD.
• Court: Vermont Supreme Court

83 A. 718

86 Vt. 130

EX PARTE SARGOOD.

Supreme Court of Vermont. Bennington.

June 10, 1912.

Petition by Eugene E. Sargood for habeas corpus. Writ refused, and petitioner remanded.

See, also, 77 Vt. 80, 58 Atl. 971; 80 Vt. 415, 68 Atl. 49, 130 Am. St. Rep. 995, 13 Ann. Cas. 367; 80 Vt 412, 68 Atl. 51, 130 Am. St. Rep. 992.

Argued before ROWELL, C. J., and WATSON, HASELTON, and POWERS, JJ.

Batchelder & Bates and C. A. Maurer, for relator.

John G. Sargent, Atty. Gen., for the State.

WATSON, J. On September 15, 1904, the relator was duly committed to the state prison to serve a sentence—designated herein as the "first sentence"—for the term not exceeding 4 1/2 years, for the crime of felony of which he had been convicted in Bennington county court. At the December term, 1904, of that court, he was convicted of the crime of perjury, and also of the crime of attempting to poison one Sanford Hicks and one Carrie Hicks. On December 31, 1904, the relator was sentenced on both of said convictions. In the perjury case, the sentence— designated herein as the "second sentence" —was to imprisonment in the state prison for the maximum term not exceeding six years, to "begin at the expiration of the term" he was then serving under the first sentence. In the attempted poisoning case, the sentence—designated herein as the "third sentence"—was to imprisonment in the state prison for the maximum term not exceeding eight years, to "begin at the expiration of the term of imprisonment" under the second sentence. He was duly committed to the state prison, under the last two sentences, on January 3, 1905. At the October term, 1905, of this court the judgment in the perjury case was reversed on error. The relator's present detention in the state prison is under the third sentence.

It is contended that the second and the third sentences were unlawful and without due process of law, for the asserted reason that cumulative sentences, to take effect, one at the expiration of another, can be imposed only by the provisions of section 2362 of the Public Statutes, and at the same time or term of court; that the third sentence imposed, the imprisonment to begin at the expiration of the second sentence, is void for uncertainty, and by his imprisonment thereunder he is deprived of equal and impartial justice, in violation of the Constitution of the state and that of the United States.

Section 2362 of the Statutes reads: "A person convicted of two or more offenses punishable by imprisonment in the state prison or house of correction, and sentenced at the same time for more than one of such offenses, may be sentenced to as many terms of imprisonment as there are offenses of which he is convicted, one term being limited to commence upon the expiration of the other, in the order designated by the court." This statute was enacted in 1880. Prior thereto, the matter was governed wholly by the common law.

It has been held in some of the sister states that, in the absence of statutory provisions giving such power, the courts have no authority to impose cumulative sentences on conviction under separate indictments for several offenses; the imprisonment under one to commence at the termination of that of another. The contrary rule, however, is more generally laid down by the courts of this country, and is, we think, the true doctrine. Kite v. Commonwealth, 11 Metc. (Mass.) 581, is a leading case of this sort. There, cumulative sentences to imprisonment at hard labor for felonies, of which the plaintiff in error had been convicted on several indictments were imposed at the same term of court. In one case, where the sentence of imprisonment was to take effect from and after the expiration of three former sentences specified, the error assigned was that the judgment was erroneous and void, because there were not three former legal and valid sentences, and therefore no fixed time for the punishment on this sentence to begin. Delivering the opinion affirming the judgment, Chief Justice Shaw said: "The court are all of opinion that it is no error in a judgment, in a criminal case, to make one term of imprisonment commence when another terminates. It is as certain as the nature of the case will admit, and there is no other mode in which a party may be sentenced on several convictions. Though uncertain at the time, depending upon a possible contingency that the imprisonment on the former sentence will be remitted or shortened, it will be made certain by the event. If the previous sentence is shortened by a reversal of the judgment, or a pardon, it then expires; and then, by its terms, the sentence in question takes effect, as if the previous one had expired by lapse of time. Nor will it make any difference that the previous judgment was reversed for error. It is voidable only, and not void; and, until reversed by a judgment, it is to be deemed of full force and effect; and, though erroneous and subsequently reversed on error, it is quite sufficient to fix the term at which another sentence shall take effect." In Blitz v. United States, 153 U. S. 308, 14 Sup. Ct. 924, 38 L. Ed. 725, the plaintiff in error was convicted on all three counts of the indictment. The judgment was arrested as to the second count. The plaintiff in error was sentenced upon the first count to imprisonment in the penitentiary for a term specified; and upon the third count, to imprisonment for a like period, to begin upon the expiration of the sentence upon the first count. It was contended by him that, as the motion in arrest of judgment should have been sustained as to the first count also, as the term of imprisonment under the judgment on the third count was to commence from the expiration of the judgment on the first count, and as no judgment should have been pronounced on the first count, the cause must be remanded with directions for a new trial. It was held that judgment should have been arrested as to the first count, as well as to the second; yet, concurring in the views expressed in Kite v. Commonwealth, it was held that the sentence in respect to the third count should stand, and the term of imprisonment under it be held to commence from the date fixed by the judgment below for imprisonment to begin under the sentence on the first count. It is said in Minis v. State, 28 Minn. 498, 5 N. W. 374, that the power of the court to make the term of imprisonment under one sentence to commence at the expiration of the term under another sentence exists from necessity; for, otherwise, a person might be convicted at the same term of court for several distinct offenses, and the court have power to punish for one only. In State v. Mahaney, 73 N. J. Law, 53, 62 Atl. 265, it is said that this "doctrine is one resting in common sense as well as in authority. It is...