Polk v. Manning, 16822

• Decision Date: 18 January 1954
• Docket Number: No. 16822,16822
• Citation: 79 S.E.2d 875,224 S.C. 467
• Parties: POLK v. MANNING.
• Court: South Carolina Supreme Court

Page 875

79 S.E.2d 875

224 S.C. 467

POLK v. MANNING.

No. 16822.

Supreme Court of South Carolina.

Jan. 18, 1954.

Appellant pro se.

T. C. Callison, Atty. Gen., Daniel R. McLeod, Asst. Atty. Gen., for respondent.

PER CURIAM.

This appeal presents for consideration the construction to be given the following sentences imposed upon appellant, pursuant to which he is now confined in the South Carolina Penitentiary:

'#11--York County

'The sentence of the Court is: That you, Bill Polk, be confined upon the public works of York County for a period of three (3) years at hard labor or for a like period in the State Penitentiary.

'J. Henry Johnson

'Presiding Judge

'Date sentenced

'April 13, 1942

'#12--York County

'The sentence of the Court is: That you, Bill Polk, be confined upon the public works of York County for a period of three (3) years at hard labor or for a like period in the State Penitentiary, this sentence to run consecutively with sentence #11.

'J. Henry Johnson

'Presiding Judge

'Date sentenced

'April 13, 1942

'#13--York County

'The sentence of the Court is: That you, Bill Polk, be confined upon the public works of York County for a period of four (4) years at hard labor or for a like period in the State Penitentiary, this sentence to run consecutively with Sentences Nos. 11 and 12.

'J. Henry Johnson

'Presiding Judge

'Date sentenced

'April 13, 1942

'Chesterfield County

'The judgment of the Court is: That you, William Polk, alias Bill Polk, be confined at hard labor for a period of ten (10) years upon the public works of Chesterfield County or for a like period in the State Penitentiary, to become effective after service of the sentence he is now serving in York County, S. C., and after he is delivered to or reports to the Sheriff of Chesterfield County, S. C.

'June 8, 1942.

'E. C. Dennis

'Presiding Judge'

The latter sentence has been construed by the Court below to begin to run at the expiration of York County Sentence No. 13.

The appellant contends that the sentence imposed upon him by Judge Dennis on June 8, 1942, began to run at the expiration of the first (#11) of the three sentences imposed upon him on April 13, 1942, by Judge J. Henry Johnson. It is his position that, at the time he was sentenced by Judge E. C. Dennis, he had entered upon service of sentence #11 and that Judge Dennis intended that he begin service of the ten-year sentence imposed upon him on June 8, 1942, at the expiration of sentence #11; and that, therefore, the ten-year sentence began to run concurrently with Sentences Nos. 12 and 13. He thus maintains that the total time he is required to serve is thirteen (13) years. Under the construction given these sentences by two Circuit Judges, appellant will be required to serve a total of twenty (20) years, it being considered that it was the intention of Judge Dennis that the ten-year sentence last imposed upon appellant was to begin at the expiration of the last of the three sentences previously imposed upon appellant by Judge Johnson.

Reference to the sentence imposed by Judge Dennis shows clearly that the sentence was to commence after the expiration of all of the three sentences previously imposed upon appellant. This conclusion is obvious even though full effect be given to the general rule that doubts, uncertainties and ambiguities in a sentence will normally be resolved in favor of the prisoner.

In determining whether several sentences are to run consecutively or concurrently, they should reasonably be construed in accordance with the intent of the trial court, if the language used makes the intent clear. But the elimination of every conceivable doubt is not requisite to their validity or enforcement. The elimination of every possible doubt cannot be demanded. Ziebart v. Hunter, 10 Cir., 177 F.2d 847, 848, United States v. Daugherty, 269 U.S. 360, 46 S.Ct. 156, 70 L.Ed. 309.

Appellant relies primarily upon the fact that Judge Dennis used the word 'sentence' in the singular in requiring that the ten-year sentence begin 'after service of the sentence he is now serving in York County, S. C. * * *', and argues that the 'sentence' therein referred to could only mean sentence #11. However, the remaining portion of the sentence of Judge Dennis, as set forth above, reveals that he intended that the appellant complete all terms of service in York County before he should begin service of the sentence imposed upon him in Chesterfield County.

The precise situation was considered in the recent case of Ong v. Hunter, 10 Cir., 196 F.2d 256, 257, and the Court there flatly rejected a similar contention. In that case, the United States District Court for the District of Kansas imposed a sentence, under identical circumstances, which is nearly identical with the sentence imposed in the instant case by Judge Dennis. With respect to the petitioner's contentions in that case, the Court stated:

'We do not think the Kansas Court had in mind such refinement of reasoning as appellant argues for. It is, of course, essential that criminal sentences be reasonably certain, definite and free from ambiguities. * * * But the elimination of every conceivable doubt is not requisite to their validity or enforcement. * * * It is not required that every possibility which may be conjured up by an active mind be eliminated. We find no uncertainty in the meaning of the sentence in question and agree with the trial court that the sentencing court intended the three year sentence (which was analogous to the sentence imposed by Judge Dennis herein) to be served in addition to the fifteen years (which comprised consecutive sentences similar to those imposed by Judge Johnson), which appellant was required to serve * * *.'

It should be noted that this case was decided without reference to any guiding or controlling Federal statute, but the Court's conclusion was reached in accordance with governing Federal principles which are similar to those prevailing in this jurisdiction.

The same point was raised in McNealy v. Johnston, 9 Cir., 100 F.2d 280, 282, and the Court there held that a nearly identical sentence was not considered by the Court to present any 'serious uncertainty.' The prisoner in that case contended that the phrase 'at the expiration of the sentence he is now serving' applied only to the first of two prior consecutive sentences, which contention is the same as is here made. By way of dicta, the Court stated that the prisoner's contention in that regard 'may' be correct but added: 'We do not mean to intimate that we have come to such a conclusion.'

Subsequently, in another proceeding, McNealy v. Johnston, D. C., 30 F.Supp. 312, 313, the same point was pressed by the prisoner and was rejected by the District Court, the Court stating that the phrase 'at the expiration of the sentence he is now serving' applied to the second and last of prior consecutive sentences.

It is not unusual or unreasonable to consider, as Judge Dennis apparently did, that two or more consecutive sentences, imposed at the same time by the same Judge, would ordinarily be considered as a single 'sentence.' Cf. Ex parte Klugh, 132 S.C. 199, 208, 128 S.E. 882, 887, where the defendant was convicted on three counts, each carrying a maximum penalty of one year, and was sentenced for a period of three (3) years without reference to separability of punishment. The Court considered it to be a 'sentence in gross' and stated that 'this sentence embraced the three one-year terms of imprisonment which the court had power to impose.' Clearly, in that case, this court considered that the term 'sentence' designated three separate, consecutive sentences.

Consecutive sentences are frequently considered as separate sentences for certain purposes while, for other, they may be considered a single sentence. It is sometimes broadly stated that a prisoner serving the first of two consecutive sentences is not serving the second sentence. Such conclusions are generally stated in proceedings upon applications for the Writ of Habeas Corpus in which it is sought to attack the validity of a consecutive sentence upon which the prisoner has not entered service. Crow v. United States, 9 Cir., 186 F.2d 704; McNally v. Hill, 293 U.S. 131, 55 S.Ct. 24 79 L.Ed. 238. Similarly, consecutive sentences may be treated as separate and distinct for the purpose of suspension of one of such sentences, Weber v. Squier, 9 Cir., 124 F.2d 618, or for modification of a subsequent consecutive sentence, Kirk v. United States, 9 Cir., 185 F.2d 185.

The intent of the Court that the ten-year sentence imposed on June...