Ex parte Williams

• Decision Date: 21 January 1938
• Docket Number: A-9433.
• Citation: 75 P.2d 904,63 Okla.Crim. 395
• Parties: Ex parte WILLIAMS.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

75 P.2d 904

63 Okla.Crim. 395

Ex parte WILLIAMS.

No. A-9433.

Court of Criminal Appeals of Oklahoma

January 21, 1938

Syllabus by the Court.

1. Where, on appeal from a judgment of conviction, no appeal bond is given to stay the execution of the judgment, and defendant is committed in execution of the judgment, on affirmance of the judgment defendant is entitled to credit for time served while the appeal was pending.

2. If the crime for which the defendant is convicted be a bailable one, the court shall at the time of entering judgment notify the defendant of his right to appeal and fix the amount of his appeal bond, and the time within which the bond shall be given in order to stay the execution of the judgment pending the filing of the appeal in the appellate court, and if the bond be given as required by law, then the bond shall stay execution of the sentence during the pendency of the appeal. St.1931, § 3195, 22 Okl.St.Ann. § 1057.

3. Where a defendant is tried, convicted, and sentenced to imprisonment, and perfects an appeal, but no appeal bond is given, and he is committed to the penitentiary in execution of the judgment during the pendency of the appeal, and on a new trial after reversal on appeal he is again convicted of the same offense, held, that he is entitled to have the period of his former imprisonment deducted from the period of imprisonment to be fixed on the last conviction.

4. The law giving to prisoners certain deductions from their term of imprisonment for good behavior is not unconstitutional as an infringement of the prerogative of the Governor to pardon. It does not restrict or interfere with this power in any way. It simply fixes the term of imprisonment in certain cases and upon certain conditions, and thus enters into and becomes a part of the judgment and sentence of the court.

5. In the construction of a statute, where the court finds in a particular clause an expression not so definite in its import as those used in other parts of the same statute, if upon review of the whole act the real intention of the lawmaking power can be collected from the definite and extensive expressions used in other parts of the same statute, a construction should be adopted that will give effect to the definite expressions used, unless such a construction contravenes some other potent provision of law.

Application of Roy Williams for a writ of habeas corpus to be directed to Jess H. Dunn, Warden of the State Penitentiary.

Writ allowed, and petitioner discharged.

Samuel W. Liske, of Kansas City, Mo., for petitioner.

Mac Q Williamson, Atty. Gen., and Sam H. Lattimore and Owen J Watts, Asst. Attys. Gen., for respondent.

DOYLE Judge.

This is an application for discharge from imprisonment in the state penitentiary by writ of habeas corpus on the part of Roy Williams.

It appears that petitioner is held under a commitment issued in execution of sentence upon a judgment of the district court of Muskogee county, rendered January 5, 1927, in accordance with the verdict of the jury finding petitioner guilty of the crime of robbery with firearms, wherein he was sentenced to serve a term of 25 years in the state penitentiary. He appealed. No briefs were filed and no appearance for oral argument made, the case was submitted on the record, and the judgment affirmed. Williams v. State, 41 Okl.Cr. 419, 273 P. 1009. The minimum expiration of the sentence based upon good conduct and works credit is November 19, 1938, as shown on the face of his prison record, showing also, that petitioner has a clear record, without any penalties for violations of penitentiary rules. That on a prior conviction for the same offense, petitioner appealed, and while the appeal was pending he served one year, four months, and twenty eight days in the penitentiary before the judgment was reversed and case remanded for a new trial. Williams v. State, 35 Okl.Cr. 171, 249 P. 433.

That having been once convicted for the same offense and having suffered punishment under the former conviction, he is entitled to credit for the time so served on the first conviction. Wherefore he has more than served out the entire term of punishment, and should have been discharged.

That for the reasons stated he is unlawfully deprived of his liberty, as his detention is without due process of law, and is a denial of the equal protection of the laws.

The argument is made on behalf of petitioner that since only defendants who are unable to give appeal bonds are the ones who have to serve the sentence in the penitentiary pending appeal, while those giving the statutory bond retain their freedom pending appeal, therefore, by the ruling of the Attorney General, petitioner is denied justice according to due process of law; citing Jackson v. Com., 187 Ky. 760, 220 S.W. 1045, 9 A.L.R. 955, quoting annotation p. 958, as follows: "It is generally conceded that where an original sentence is merely erroneous, credit may be had for the time served thereunder. But in some of the cases a distinction has been made between sentences which are merely erroneous and those which are regarded as absolutely null and void, and in the latter instance credit for the time served thereunder is refused-a result seemingly more consistent with dry logic than natural justice. The distinction has not been made in all of the cases. For instance, in the reported case (Jackson v. Com. [187 Ky. 760, 220 S.W. 1045, 9 A.L.R.] 955), the court without reference to the question whether or not the original judgment was void or merely erroneous, held that in resentencing the defendants they should be allowed credit for the time served under the erroneous sentence. It will be remembered that the theory of the court was that it would be both an injustice and a 'flagrant invasion of their legal rights' to require them to serve their terms or any part thereof twice."

In some jurisdictions statutes have been enacted which, in some instances at least, have a bearing upon the question under consideration. For instance, the Iowa statute, Code 1935, § 14018, provides that if a defendant, imprisoned during the pendency of an appeal, is granted a new trial and is again convicted, the period of his former imprisonment shall be deducted from the period of imprisonment to be fixed on the last verdict of conviction.

See State ex rel. Bone v. Barr, Warden, 133 Iowa 132, 110 N.W. 280, holding that upon resentence the defendant is entitled to have the "good time" earned under his former sentence considered in determining the amount of further punishment that should be imposed.

In the case of In re Bojar, 7 Wash. 355, 35 P. 71, it is held that a defendant is entitled to the benefit of the statute when the appeal is dismissed for want of prosecution.

Counsel for the state in their brief say:

"The effect of the granting of a new trial has been declared by statute in this state.

Section 3119 O.S.1931, [22 Okl.St.Ann. § 951] provides in part: 'A new trial is a re-examination of the issue in the same court, before another jury, after a verdict has been given. The granting of a new trial places the parties in the same position as if no trial had been had. * * * The former verdict cannot be used or referred to either in evidence or in argument, or be pleaded in bar of any conviction which might have been had under the indictment or information,"'-citing Watson v. State, 26 Okl.Cr. 377, 224 P. 368; Duncan v. State,

41 Okl.Cr. 89, 270 P. 335; Bayne v. State, 48 Okl.Cr. 195, 290 P. 354.

The response to the rule to show cause why the writ should not issue concludes: "Respondent denies that petitioner is entitled to credit for the time he served while said case was on appeal, and that petitioner will not have served his present sentence on a minimum basis until November 19, 1938."

The important question involved in the case on the uncontroverted facts is whether or not petitioner is entitled, under the law, to credit with the time he had served in the penitentiary before the reversal of the former judgment; in other words, to have the period of his former imprisonment for the same offense deducted from the term of imprisonment fixed on the last verdict of conviction?

In the early case of Ex parte Tyler, 2 Okl.Cr. 455, 102 P. 716, 718, a similar question was before this court. In the opinion, after quoting the statute, we said:

"Here are two distinct provisions. The first provides that: 'If an appeal is taken and the bond so fixed is given by the defendant, conditioned, etc., the execution of the judgment shall be stayed until affirmed or reversed, or modified by the Supreme Court.' The second provides that: 'If no bond be given the appeal shall stay the execution of judgment, but the defendant shall be confined in the county jail, until the case is finally disposed of.' The first provides for a supersedeas bond when an appeal is taken. The latter dispenses with a bond, but stays the execution when the appeal is taken. The greater includes the less as in many other instances, but the less does not necessarily extinguish the greater. The section amended (5612, Wilson's Rev. & Ann.St.1903 [22 Okl.St.Ann. §§ 1057-1062]) originally provided: 'If no bond be given the appeal shall not stay the execution of the judgment' as amended it omits the word 'not,' and adds: 'But the defendant shall be confined in the county jail until the case is finally disposed of.' This amendment was manifestly designed to prevent the imprisonment in the penitentiary of a defendant pending his appeal from a judgment of conviction. * * *

We are not disposed to defeat the object of the statute by so construing it as to make it a nullity. The true inquiry in the interpretation of statutes is to ascertain the intention of the lawmaking power in...