Oliver v. Oliver

• Decision Date: 24 November 1897
• Citation: 169 Mass. 592,48 N.E. 843
• Parties: OLIVER v. OLIVER.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

169 Mass. 592

48 N.E. 843

OLIVER v. OLIVER.

Supreme Judicial Court of Massachusetts, Middlesex.

November 24, 1897

At the hearing in the superior court before John H Hardy, J., it appeared that in July, 1896, libelee had been sentenced by the superior court, for breaking and entering to serve a term of not more than six nor less than three years in state prison. The court ruled that this sentence was not a sentence to confinement at hard labor for five years or more, and dismissed the libel, and reported the case to the supreme judicial court.

COUNSEL

C.R Morse, for libelant.

OPINION

KNOWLTON J.

A sentence of a married person for confinement at hard labor for life, or for five years or more, in the state prison, or in a jail or house of correction, is made a ground for obtaining a divorce in favor of the husband or wife of the person so sentenced. Pub.St. c. 146, § 2. Prior to the passage of the Statutes of 1895 (chapter 504), there was hardly a possibility of question in regard to the length of the time for which sentence was imposed. The first section of this statute is as follows: "When a convict is sentenced to the state prison otherwise than for life, or as a habitual criminal, the court imposing the sentence shall not fix the term of imprisonment, but shall establish a maximum and minimum term for which said convict may be held in said prison. The maximum term shall not be longer than the longest term fixed by law for the punishment of the offense of which he is convicted, and the minimum term shall not be less than two and one-half years." Then follows a provision authorizing the prison commissioners, with the approval of the governor and council, at any time after the expiration of the minimum term, to issue to the convict a permit to be at liberty upon such terms and conditions as they shall deem best, with power in them to revoke the permit at any time previous to the expiration of the maximum term for which he may be held under the sentence. The violation by the holder of a permit of any of its terms or conditions immediately renders it void. If a permit is revoked, or becomes void, the commissioners of prisons may issue an order authorizing the arrest of the holder of the permit, and his return to the prison. When returned, he is to be detained according to the terms of his original sentence, and the time between his release upon the permit and his return to the prison is not...