Henderson v. James

Decision Date05 February 1895
PartiesHENDERSON v. JAMES, Warden.
CourtOhio Supreme Court

Error to circuit court, Franklin county.

Application upon the relation of David Henderson, against one James prison warden, for a writ of habeas corpus. From a reversal by the circuit court of a judgment of the court of common pleas discharging the prisoner, relator brings error. Affirmed.

On September 18, 1879, the plaintiff in error, David Henderson was received at the penitentiary to serve a five-year sentence from Warren county. On October 12, 1881, after serving a little over two years of that sentence, he escaped and was at large until March 16, 1891, when he was received at the penitentiary under the name of Carrol Scott, on a five-years sentence from Cuyahoga county; but nothing was known by the Cuyahoga county court as to the prisoner's real name being David Henderson, nor as to his former sentence, nor as to his escape. When he reached the penitentiary, he was received and put to work as Carrol Scott, without being recognized as David Henderson by the warden. After he had been there some time, registered and working as Scott, the deputy warden recognized him as being David Henderson, but no action was taken by the warden or any one else upon such recognition, and the prisoner served out his sentence as Carrol Scott, and was discharged July 14 1894. The warden, having learned that Scott was Henderson, detained him as the escaped Henderson, and duly registered him as the returned convict, and put him to work to serve our his unexpired sentence. Thereupon David Henderson filed his petition for a writ of habeas corpus, the warden made due return, and the plaintiff replied. The reply is, in effect, that, within a week after he was received at the penitentiary as Scott, he was recognized as the escaped convict Henderson by the deputy warden, who was then, in the absence of the warden, in charge of the prison. To this reply the warden demurred, which demurrer was overruled, by the court of common pleas of Franklin county; and, on hearing the case, the prisoner was ordered to be discharged. Exceptions were taken by counsel for the warden, and on hearing the case in the circuit court, on petition in error, the judgment of the court of common pleas discharging the prisoner was reversed, and the prisoner remanded to the custody of the warden, to serve out his unexpired sentence. Thereupon Mr. Henderson filed his petition in error in this court to reverse the judgment of the circuit court, and for the affirmance of the judgment of the common pleas.

An order discharging a prisoner on habeas corpus may be stayed by a court in which a writ of error is pending, under Rev.St. § 6725 (See Gen.Code, § 12223-17) without fixing any terms other than the stay of execution of the order.

Syllabus by the Court

1. An escaped convict, who is convicted and sentenced to the penitentiary for another crime, may, at the expiration of the latter sentence, be held to serve out the remainder of his first sentence.

2. A final order of discharge on habeas corpus may be reviewed and reversed on error, by a higher court.

3. In such case the order of discharge may be stayed by the higher court, under section 6725, Rev. St., without fixing any terms other than the stay of the execution of the order.

George B. Okey and James A. Allen, for plaintiff in error.

J. K. Richards, Atty. Gen., for defendant in error.

BURKET, J. (after stating the facts).

The latter part of section 7325, Rev. St., provides that, ‘ if any convict escape from the penitentiary, * * * no part of the time such convict is absent shall be counted as a part of the time for which such convict was sentenced.’ The plaintiff in error claims that, as his sentence in Cuyahoga county was not made to begin in the future, his imprisonment under that sentence began at once upon his arrival at the penitentiary, and that, by virtue of the above section, his imprisonment under the Warren county sentence again began to run immediately upon his return to the penitentiary, so that both sentences were being served at the same time, and that, upon the expiration of the longer sentence, he was entitled to his discharge from both sentences. There was no attempt to invoke the doctrine of cumulative sentences, and the prisoner was sentenced to five years without knowledge on part of the court that he was an escaped convict. As we have no statute authorizing cumulative sentences for crime, it would seem at first blush that such sentences should not be permitted in this state; but this court, with the courts of most of the other states, as well as England, has sustained cumulative sentences without the aid of a statute. Williams v. State, 18 Ohio St. 46; Picket v. State, 22 Ohio St. 405; Larney v. Cleveland, 34 Ohio St. 599; Bish. Cr. Law, § 953; Rex v. Wilkes, 4 Burrows, 2575; State v. Smith, 5 Day, 175; Fitzpatrick v. People, 98 Ill. 269; Mims v. State, 26 Minn. 498, 5 N.W. 374; Mills v. Com., 13 Pa. St. 631; Russell v. Com., 7 Serg. & R. 489; In re McCormick, 24 Wis. 492; Kite v. Com., 11 Metc. (Mass.) 581. In Texas, Indiana, and Kentucky, the courts hold cumulative sentences unauthorized. In Indiana there is a statute to the effect that the term of service shall commence on the day of conviction and sentence. See Kennedy v. Howard, 74 Ind. 87; Prince v. State, 44 Tex. 480; Hannahan v. State, 7 Tex. App. 664; Baker v. State, 11 Tex. App. 262, and James v. Ward, 2 Metc. (Ky.) 271. The great weight of authority is in favor of cumulative sentences, and they should be upheld on principle. The severe punishments which induced judges to invent technicalities to aid the acquittal of those on trial, on criminal charges, no longer exist; and, under our just and humane statutes, those who violate the law should be duly punished for each offense. Tilgham, C. J., in Russel v. Com., 7 Serg. & R. 489, well says: ‘ But, to consider the thing on principle, where a man has been sentenced to imprisonment for one offense, and is afterwards convicted of another, what can be so proper as to make his imprisonment for the second offense commence at the expiration of the first imprisonment? Would it not be absurd to make one imprisonment a punishment for two offenses? Nay, the absurdity does not end there, for, unless imprisonment for the last offense is to begin where the imprisonment for the first ends, it would be impossible, under our system, to punish the offender, in certain cases, for the last offense, at all.’

But, as there was no attempt to impose a cumulative sentence in this case, it might be said that the doctrine of cumulative sentences is not involved in this case. It has been argued at length, and in one phase of the case it is pertinent. Had the court known that the prisoner on trial was the escaped convict Henderson, the court might, on proper proof of that fact, have sentenced him to five years' service in the penitentiary, and ordered him to be delivered to the warden, and fixed his term of service to begin at the expiration of the Warren county sentence. The power of the court to do this, in the absence of any statute, seems clear from the cases above cited. Again, had the court known that the prisoner under indictment in Cuyahoga county was the escaped convict Henderson, the warden of the penitentiary might have been notified, and the convict returned to the penitentiary, to serve out his Warren county sentence. Being then in the penitentiary under a sentence from one county, and under indictment for another crime in another county, section 7234, Rev. St., would have been applicable, and under that section he could have been taken from the penitentiary to Cuyahoga county, and tried under the indictment pending against him there, and, upon conviction, he could have been sentenced to the penitentiary, and returned thereto, under section 7238, Rev. St., to serve out the full term of both sentences. Sections 7234 and 7238 are as follows:


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