In re Stalker

• Citation: 44 N.E. 1068,167 Mass. 11
• Parties: In re STALKER.
• Decision Date: 22 October 1896
• Court: United States State Supreme Judicial Court of Massachusetts

167 Mass. 11

44 N.E. 1068

In re STALKER.

Supreme Judicial Court of Massachusetts, Berkshire.

Oct. 22, 1896.

Petition by Morehouse Stalker for habeas corpus. The hearing was adjourned to full court. Petition denied.

Petitioner was convicted of adultery, and sentenced to be confined to hard labor in the house of correction in Pittsfield for two years and six months, and therein held in custody under a commitment issued on such sentence.

G.C. Warner, for petitioner.

C.L. Gardner, Dist. Atty., for the Commonwealth.

HOLMES, J.

We assume, as contended for the petitioner, that there was error in his sentence, because it did not include solitary imprisonment. Lane v. Com., 161 Mass. 120, 122, 36 N.E. 755. But on a writ of error this could be corrected. Pub.St. c. 187, § 13; Jacquins v. Com., 9 Cush. 279; Sennott's Case, 146 Mass. 489, 494, 16 N.E. 448. The case is not like Ex parte Lange, 18 Wall. 163, where the petitioner was liable only to fine or imprisonment, but was sentenced to both, had been imprisoned, and had paid his fine. In that case it was held that the court had no jurisdiction to impose a new sentence of imprisonment. See, also, Feeley's Case, 12 Cush. 598, 600. But in the case at bar the prisoner's sentence is correct, as far as it goes. He has suffered nothing that is not consistent with the further penalty which he says ought to be imposed upon him, and there is nothing to hinder that being added before his term expires. It is true that by Pub.St. c. 215, § 23, “in the execution of such sentence, the solitary imprisonment shall precede the punishment by hard labor, unless the court otherwise orders.” But that can be met, if necessary, by an order in the amended sentence.

Manifestly, it would be an absurd result if the petitioner could get his discharge on habeas corpus, when he could not get it by a regular proceeding to reverse his sentence. But whether the sentence could be corrected, or could not be, the rule which has been approved by this court denies relief by habeas corpus when the court has jurisdiction to sentence the petitioner, and errs simply in regard to the extent of the punishment. Sennott's Case, 146 Mass. 489, 492, 493, 16 N.E. 448; Feeley's Case, 12 Cush. 598, 599. See Ex parte Bigelow, 113 U.S. 328, 5 Sup.Ct. 542;In re Belt, 159 U.S. 95, 15 Sup.Ct. 987.

Petition denied.