In re Breton

• Decision Date: 29 May 1899
• Citation: 93 Me. 39,44 A. 125
• Parties: In re BRETON.
• Court: Maine Supreme Court

44 A. 125

93 Me. 39

In re BRETON.

Supreme Judicial Court of Maine.

May 29, 1899.

(Official.)

Exceptions from supreme judicial court, Androscoggin county.

Petition of Joseph Breton for habeas corpus, in which it appeared that the petitioner was twice convicted in the municipal court for the city of Lewiston of the crime of keeping intoxicating liquors with intent to sell the same in violation of law, and sentenced therefor. From each conviction and sentence the petitioner appealed to the supreme judicial court. The appeals were entered, and, the petitioner being defaulted, the judgment of the lower court in each case was affirmed. Mittimus was issued in one case, and the petitioner served that sentence, his imprisonment expiring December 6, 1897 Mittimus was issued in the second case December 6, 1897, and it is from imprisonment under the second mittimus that the petitioner sought to be released by his petition for this writ of habeas corpus. It was admitted that the facts stated in the two mittimuses are true.

At the hearing, the presiding justice ruled, as a matter of law, that the petitioner's imprisonment was lawful, and ordered the petitioner, for that reason, to be remanded.

From this ruling the petitioner excepted. Exceptions sustained.

Argued before PETERS, C. J., and EMERY, HASKELL, WHITEHOUSE, WISWELL, and STROUT, JJ.

M. L. Lizotte and S. J. Kelley, for petitioner.

W. H. Judkins, Co. Atty., for the State.

WHITEHOUSE, J. On the 1st day of June, 1897, the petitioner was convicted in the municipal court of Lewiston upon two complaints for illegally keeping intoxicating liquors for sale, and received an alternative sentence of 60 days' imprisonment in each case. It was not stated which imprisonment should be suffered first, nor that sentence in either case should begin at the expiration of the sentence in the other.

The petitioner duly entered an appeal in each case in the supreme judicial court at the September term of 1897, and on the 15th day of that term, being the 8th day of October, he was defaulted in each case, and the judgment of the court below affirmed and mittimus ordered to issue. Here again there was no order of the court declaring which imprisonment should be suffered first, or that either should begin only at the expiration of the sentence in the other. It appears that the petitioner was in fact committed on the same day that judgment was affirmed, by virtue of a mittimus issued by the clerk on that day, while court was in session. At the expiration of the 60 days named in that mittimus, the clerk, without any special order of the court, issued a mittimus in the second case, bearing date December 6, 1897, and it is from imprisonment under this second mittimus that the petitioner asks to be released upon this writ of habeas corpus.

It is a familiar rule of the common law with respect to misdemeanors that the court may order the imprisonment on one count or indictment to begin on the expiration of that on another. Among the earliest cases in which this doctrine was applied was the famous libel case of Rex v. Wilkes, 4 Burrows, 325; but in Reg. v. Cutbush, 2 L. R. Q. B. 379, it was declared that a statute was necessary to give the court such power in cases of felony. In some of our states it has been denied that the court has such a power in any case, unless given by statute. 1 Bish. Cr. Proc. 1317; Prince v. State, 44 Tex. 480; James v. Ward, 2 Mete. (Ky.) 271; and see opinion of Chief Justice Cooley in Bloom's Case, 53 Mich. 597, 19 N. W. 200, and Lamphere's Case, 61 Mich. 105, 27 N. W. 882. But the great weight of authority is undoubtedly the other way. 1 Bish. Cr. Proc. 1327; Kite v. Commonwealth, 11 Mete. (Mass.) 581; U. S. v. Patterson, 29 Fed. 775. And such power has uniformly been exercised in this state with respect to sentences in cases of felony as well as of misdemeanor.

All the authorities agree, however, that, in the absence of any statute, if it is not stated in either of two sentences imposed at the same time that one of them shall take effect at the expiration of the other, the two periods of time named will run concurrently, and the two punishments be executed simultaneously. Such Mr. Bishop declares to be the rule of the common law (1 Bish. Cr. Proc. 1310), and such has been the unquestioned rule of procedure in this state. It is familiar practice that, wherever the court imposing several sentences desires to have one begin on the expiration of another, that fact is expressly stated in the sentence; and whenever the court inadvertently fails to have the sentence recorded in that form, or from leniency intentionally omits to add such a provision, and the convict is committed in pursuance of such sentences, he is either voluntarily released by the jailer or discharged on habeas corpus at the expiration of the longest term named in either of the sentences.

Nor has this rule ever been changed, or Its operation in any manner modified, by the statutes of this state. The provision of Rev. St. c. 27, § 54, expressly empowering the court to affirm the judgment of the court below...