Maxey v. Manning

• Decision Date: 23 November 1953
• Docket Number: No. 16800,16800
• Citation: 224 S.C. 320,78 S.E.2d 633
• Court: South Carolina Supreme Court
• Parties: MAXEY v. MANNING.

Page 633

78 S.E.2d 633

224 S.C. 320

MAXEY v. MANNING.

No. 16800.

Supreme Court of South Carolina.

Nov. 23, 1953.

Russell B. Maxey, pro se.

T. C. Callison, Atty. Gen., J. S. Verner, Asst. Atty. Gen., for respondent.

STUKES, Justice.

The petitioner (now appellant) in this habeas corpus proceeding was convicted in 1949 in the Court of General Sessions for Richland County of the crimes of burglary, with recommendation to merecy, and assault and battery with intent to kill. This court affirmed upon appeal. State v. Maxey, 218 S.C. 106, 62 S.E.2d 100. Thereafter he was committed to the State Penitentiary and began the service of his sentences on November 15, 1950.

The petition to the lower court was based upon the contention that appellant's sentences should be served upon the public works of Richland County, which his confinement in the penitentiary violated; and that he had made repeated efforts to obtain transfer to the county authorities, which were refused, wherefore he is entitled to release from custody.

Petitioner's understanding of the sentences, upon which he based his contention of illegality of confinement in the penitentiary, resulted from the recital in the Statement which was contained in transcript of record for appeal from his convictions, which was, in effect, that he had been sentenced upon the conviction of burglary to serve a term of seven years on the public works of Richland County and for the conviction of assault and battery with intent to kill he should be confined for a period of ten years, without the latter stating the place of confinement or service of the sentence. This was properly in narrative form and obviously without attempt to reproduce or copy the sentences in full. See Sec. 3 of Rule 4 of the Supreme Court which relates to the contents of such a 'statement', under which the recital was adequate.

At the hearing upon the writ which was issued by the court, and after return by the State, the original sentences signed by the presiding judge could not at first be found and the Journal of the court was introduced to show that the sentences were, for burglary the defendant should be confined at hard labor upon the public works of Richland County for a term of seven years, or a like term in the State Penitentiary, etc., and the sentence for assault and battery with intent to kill was for ten years' confinement at hard labor upon the public works of the county, or for a like term in the State Penitentiary, etc. However, the originals of the sentences were soon found and exhibited to the petitioner. The following is quoted from the agreed transcript of record for this appeal: 'Just after the hearing adjourned, and after the remanding order had been given, the purportedly originals were located, and were compared with the copies--by the Judge in his office--in the presence of the petitioner, and found to be exact copies. These copies are attached hereto as exhibits.'

In addition, conforming certified copies were, and are, on file in the penitentiary and also in the office of the Probation and Parole Board, so there is certainly no lack of originals and true and correct copies of the sentences.

The sole point of appellant's petition, that the sentences which he is serving are as stated in the record submitted to this court in his former appeal from his convictions, is plainly without merit. Neither the form, nature, length, nor any other feature of his sentences was involved in that appeal, so there was no necessity to set them out in full or even at all; they were casually mentioned in the disposition of the appeal as punishment of six and a half years imprisonment. 218 S.C., at page 111, 62 S.E.2d, at page 102. The details of them were irrelevant to the appeal and had no proper place in the transcript. Section 3 of Rule 4, supra.

A reading of the opinion of the court, cited above, reference to which should be had, will further show that all of the points made in the appeal were painstakingly considered and each decided adversely to the appellant. Incidentally, he was faithfully and skillfully represented at the bar of this court by able and long-experienced counsel.

After the hearing upon the writ and before formal order thereupon, the lower court indulgently allowed appellant to file what he styled a traverse to the return by means of which he tendered other claimed issues and his appeal from unfavorable decision thereabout will now be discussed. The sentence for burglary was for seven years upon the public works of the county or the same in the penitentiary, now quoting from it: 'Provided that upon the service of five (5) years that the balance of the aforesaid sentence be and the same is hereby suspended and that the said defendant is hereby placed on probation for a period of 5 years under the supervision of South Carolina Probation and Parole Board,' etc., in the usual form of such suspended sentences, with further provision as follows: 'This sentence to run concurrently with other sentence imposed on this date.' The sentence for assault and battery with intent to kill was for ten years' hard labor on the public works of the county or the same in the State Penitentiary, quoting now from it: 'Provided that upon the service of 6 1/2 years that the balance of the aforesaid sentence be and the same is hereby suspended and that the said defendant is hereby placed on probation for a period of 5 years,' etc.; and it included the provision, as follows: 'This sentence to run concurrently with sentence on burglary count.' Both sentences were signed by the presiding judge on September 23, 1949. His intention that the sentences should run concurrently need not have been expressed. Finley v. State, 219 S.C. 278, 64 S.E.2d 881.

The contention thereabout is that the suspension of the seven year sentence after five years' service of it conflicts with the ten year sentence which is not suspended until after 6 1/2 years' service of it; that the suspension of the seven year service after five years and ensuing custody of the Parole Board cannot be postponed or suspended during the 1 1/2 years which will remain to be served upon the ten-year sentence; and that the contended conflict renders the sentences void. The statute limits suspension under probation to five years. Section 55-594, Code of 1952.

When one of two sentences to be served concurrently is shorter than the other it passes out of the picture at the end of the term of it simply because it is completed. 15 Am.Jur. 123, Criminal Law, sec. 465. 24 C.J.S., Criminal Law, 1235 et seq., § 1996. Concurrency of sentences means that a prisoner is permitted to serve both at the same time and he will complete the shorter before the longer, if they are of different lengths, but he must complete the longer. Looking to the future, because appellant has served only about three years, when five years' service is completed, appellant will continue service upon the longer, ten year term, until the required portion of it, 6 1/2 years, is completed. One and 1/2 years of his probationary period of the seven year sentence will pass at the same time, so benefit, rather than injury, will result to him. In no event can he be held on probation for more than five years after completion of the required years of service of the longer term. Parenthetically, the terms of the sentences and the respective required periods of service of them before suspension and parole have been stated without consideration...