In re Crow

• Decision Date: 15 May 1884
• Citation: 19 N.W. 713,60 Wis. 349
• Parties: IN RE CROW.
• Court: Wisconsin Supreme Court

60 Wis. 349

19 N.W. 713

IN RE CROW.

Supreme Court of Wisconsin.

Filed May 15, 1884.

Habeas corpus.

D. S. Rose, for J. W. Crow, petitioner.

H. W. Chynoweth, Asst. Atty. Gen., for the sheriff.

ORTON, J.

This is an original petition by J. W. Crow for writ of habeas corpus, and for his discharge from imprisonment in the county jail of the county of La Fayette, and from the custody of the sheriff of said county. The petition was filed and the writ issued on the eighteenth day of March, 1884. By the petition, and the return of Nelson Bower, the sheriff of said county, the following facts of record appear:

On the fourteenth day of December, 1883, the petitioner was sentenced by the circuit court of La Fayette county, on four several convictions for misdemeanors, to pay fine and costs, and, if not paid forthwith, to be imprisoned in the county jail, on the first conviction, for 10 days; on the second, for 10 days; on the third, for 10 days; and on the fourth, for 40 days; to be so imprisoned on the second after the termination of the first, on the third after the termination of the second, and on the fourth after the termination of the third, for the aggregate term of 70 days. The defendant was present in court when said sentences were pronounced, and on the same day the clerk of the court duly made his certificates of the said convictions and sentences, and the same came to the hands of said sheriff. On the tenth day of March, 1882, the said sheriff arrested the petitioner, and held him in custody in the county jail by virtue of said certificates; whereupon the said Crow presented his petition, reciting the above facts, to the Hon. John W. Blackstone, court commissioner of the circuit court for said county, for a writ of habeas corpus, and for discharge thereon from said imprisonment, alleging as the ground of such discharge, in respect to the first three of said sentences, “that, at the time of rendering said judgments by said court, he was present in open court and ready to enter upon the service of said terms of sentence, and did, in law, so enter upon the service of said terms of sentence, and that said terms of sentence expired, and that he became entitled to his discharge under said judgments and certificates of conviction on the expiration of the terms mentioned therein;” and in respect to the fourth of said sentences, “that (in addition to the above) said term of imprisonment was fully served and has completely expired.” It is further stated in said petition “that the petitioner, since the rendition and entry of each and all of said severaljudgments, has been in the city of Darlington, in said county, upon the streets and in the public places, and has almost daily during said term met and conversed with said sheriff.”

It may be noted here that there is nothing in this petition inconsistent with the fact that the petitioner had been imprisoned in the county jail upon those certificates of sentence for the full aggregate term of seventy days. (1) He was in the city of Darlington, upon the streets and in the public places, since the rendition and entry of the several judgments. This might have been long after he had been imprisoned in the jail for the full terms. (2) He almost daily, during said term, met and conversed with said sheriff. This he could have done within the county jail. But, besides, there being nothing in the petition to show that the petitioner had not suffered his full term of imprisonment in the county jail, but as to each of the first three sentences it is stated that he entered upon the service of said terms of sentence, and that said terms had expired, and as to the fourth that said term of imprisonment “was fully served and had completely expired.” The return to the first writ on this petition was simply that he, the said Nelson Bower, “imprisons and restrains said John W. Crow, as aforesaid, under and by virtue of four certain certificates of conviction and sentence, issued out of said court by the clerk thereof, December 14, 1883, in four separate actions of record in said court,” etc. The certificates referred to are appended to the return the same as to the petition. On the hearing of this petition and return the honorable court commissioner discharged the petitioner on the eleventh day of March, 1884.

The decision of this court upon the case made here, upon the petition and the return of the sheriff to the writ, must exclusively depend upon the question whether the commissioner had jurisdiction of the first writ to hear and decide the case made by the petition and return. The argument of this case was especially able on the part of the learned counsel of the petitioner, and, on behalf of the state, by the learned assistant attorney general, Mr. Chynoweth, who not only made a very cogent argument, but presented and commented upon a very large number of cases, which he claimed to be authority for his positions,--(1) that the commissioner had no jurisdiction whatever over the case; (2) that if he had jurisdiction to issue the writ, he had no lawful authority to discharge the petitioner; and that in either case his judgment was absolutely void, and not conclusive, or a bar to this second hearing upon habeas corpus of the same causes of imprisonment. He contends (1) that when it appeared by the petition that the petitioner “had been committed or detained by virtue of the final judgment or order of any competent tribunal of civil or criminal jurisdiction, or by virtue of any execution issued upon such order or judgment,” that it then appeared that the petitioner was “not entitled to prosecute such writ” according to section 3408, Rev. St., so providing. It might be a sufficient answer to this contention that the petition in that case did not claim that the circuit court had no jurisdiction to render judgment of sentence in those four cases of conviction, or that the certificates of such convictions and sentences, as commitments of the petitioner in execution of the judgments, were not in every respect sufficient and valid, but that he claimed only that he had endured and suffered the full punishments and imprisonments thereon, and that he was imprisoned long after the full expiration of said terms of imprisonment to which he had been so sentenced. If in such a case, however, as claimed, or in any other, the facts in the above prohibition of the statute appearing, the petitioner is not entitled to prosecute such writ, that, of course, is the end of the case, and a prisoner held in custody and imprisoned long after he has completely fulfilled the whole sentence, and been imprisoned for the whole term, cannot procure his liberty by this writ. If not by this writ, especially made a part of Magna Charta for the express purpose of delivering a subject or citizen from unlawful imprisonment,and which has been used always since effectually for such purpose in all possible cases of unlawful imprisonment, where is the remedy? If a person sentenced to imprisonment may be saved from all of it except the arrest, when the judgment, though just, may be without jurisdiction, or the execution, though formal, may be without authority, why may not one be released and enlarged by this writ, after he has suffered the full measure of the imprisonment for which he was sentenced, when he is still held without the pretense of any lawful authority? The question answers itself. But such has always been proper ground for the writ, and it is no answer by return of the officer that he holds the prisoner by virtue of a valid judgment and an authorized execution of it. “A prisoner held by valid process may be discharged by habeas corpus by reason of some omission or event occurring since the issuing of it.” Wood, Mand. Hab. Corp., etc., 174.

Many of the cases cited by the learned assistant attorney general, and many other cases, affirm this jurisdiction on habeas corpus.

In Trotter v. Mills, 6 Wend. 42, in a suit on a judgment, the defendant pleaded nul tiel record, and discharged from imprisonment. Held, that if discharged by reason of payment or satisfaction of the judgment, such discharge was final and conclusive.

In Hoose v. Sherrill, 16 Wend. 38, the defendant was served by summons when he was a non-resident, and not amenable to summons. The case went to judgment of fine and imprisonment for 30 days, unless the fine was paid. Held, that a judge at chambers had jurisdiction in habeas corpus to issue the writ, but that the former judgment was final, because the court had jurisdiction to issue a summons in a proper case, and whether it was a proper case could only be inquired on certiorari. So, here, the commissioner had jurisdiction to issue and hear the writ of habeas corpus for such cause, and such cause could only be reviewed on certiorari.

In Rex v. Collyer, Sayers, 44, (26 Geo. II.,) defendant was convicted of an assault, and sentenced to imprisonment for one month, but it was added that he ask pardon of the injured party, and publish the sentence in the Daily Advertiser, and be imprisoned until he had done so. The month's imprisonment had not expired. Held, that king's bench had jurisdiction to discharge him on habeas corpus, for excess of jurisdiction.

In Cleek v. Com. 21 Grat. 777, the conviction and sentence were in July, for 10 months. Defendant escaped in September, was recaptured in January, and remained in prison until May, 10 months from date of sentence. On habeas corpus and refusal to discharge an appeal was taken to the court of appeals on error, and it was held that the three months he was out of prison on escape must be added to his sentence, because his escape was his own fault and crime. It is said in the opinion that the sheriff had the right to continue his imprisonment without any further order than the original sentence, because he was cognizant of the facts, and if the prisoner desired to have the question decided he could have had a writ of habeas corpus and the facts...