Rigor v. State

• Decision Date: 21 June 1905
• Citation: 61 A. 631,101 Md. 465
• Parties: RIGOR v. STATE.
• Court: Maryland Court of Appeals

61 A. 631

101 Md. 465

RIGOR v. STATE.

Court of Appeals of Maryland

June 21, 1905

Error to Criminal Court of Baltimore City: Danl. Giraud Wright Judge.

Roland B. Rigor was convicted of assault with intent to kill, and brings error. Affirmed.

Argued before McSHERRY, C.J., and FOWLER, BRISCOE, BOYD, PAGE PEARCE, SCHMUCKER, and JONES, JJ.

James J. Lindsay and Lewis Hochheimer, for plaintiff in error.

Wm. S Bryan, Jr. Atty.Gen., and Albert S.J. Owens, for the State.

McSHERRY C.J.

The record now before us has been brought into this court by petition as upon writ of error. It appears that the plaintiff in error was indicted by the grand jury for Baltimore City on October 7, 1904, upon the charge of having made an assault upon one Henry A. Le Cron with intent to kill and murder. Before being brought to trial on this indictment, he was convicted of felony in the circuit court for Baltimore county on November 29, 1904, and the same day was sentenced to be confined in the penitentiary for a term of years, which has not yet expired. He was in execution of that sentence committed to the penitentiary and to the custody of the warden thereof. On the 8th of December following, the case pending against him in the criminal court of Baltimore City was called for trial, and upon a writ of habeas corpus issued at the instance of the state's attorney the plaintiff in error was brought into the criminal court in the custody of the warden of the penitentiary to answer the indictment accusing him of an assault with intent to murder. He thereupon filed a motion in the words following: "The defendant represents to the court that on the 29th day of November, 1904, he was duly convicted of felony by the circuit court for Baltimore county, and thereupon, on the 29th day of November, 1904, by said court sentenced to imprisonment in the Maryland Penitentiary, and is now a prisoner convicted of felony in the custody of the warden of said prison, under the authority and jurisdiction of said circuit court, by virtue of said sentence. Wherefore he prays that he be not now required to plead to the above indictment, nor put on trial." To the legal sufficiency of this motion the state's attorney excepted. The court sustained the exception and overruled the motion. On the 12th of December a writ of habeas corpus was again issued directing the warden of the penitentiary to produce the plaintiff in error before the criminal court on the following day for trial on the indictment pending in that court against him for an assault with intent to murder. On the return of the writ the plaintiff in error moved to quash the writ, first, because at the time the writ was issued he was, and upon the return thereof still continued to be, lawfully in the custody of the warden of the prison in execution of the sentence imposed by the circuit court for Baltimore county; secondly, because, being convicted and imprisoned, he could not properly prepare for trial; thirdly, because, by reason of his said situation, he could not be required to answer or plead to the indictment. These reasons and the motion to quash the writ of habeas corpus were overruled, and thereupon a plea of not guilty was entered, and the plaintiff in error went to trial before the court without a jury. He was adjudged guilty, and was sentenced by the criminal court of Baltimore City on December 28, 1904, to be confined in the Maryland Penitentiary for the term of nine years, to begin immediately on the expiration of five years imposed upon him by the circuit court for Baltimore county in the case of the state of Maryland against him and Lee R. Mooney (case No. 5,621, docket of said court, September term, 1904, folio 178 of criminal docket No. 12 of said court). On the same day there was filed a petition asking that the record be removed into this court as upon writ of error, and in that petition the errors of which the plaintiff in error complains were assigned in the following words: "(1) This defendant having on the 29th day of November, 1904, during the pendency of the indictment in this case, and after the time of the alleged commission of the offenses therein averred, been duly convicted by the circuit court for Baltimore county of felony, and on the same day sentenced by said court to imprisonment in the Maryland Penitentiary, and being at the time of calling the above-entitled case for trial convict and legally held in the custody of the warden of said prison in execution of said sentence, which is and remains unexpired, prayed that he be not now required to plead to the above indictment, nor put on trial; but the court, having brought the defendant before it in the custody of the warden of the said prison by means of a writ of habeas corpus, proceeded to trial and sentence. (2) That the court overruled the motion of the defendant to quash the writ of habeas corpus and remand him to the custody in which brought up, and also the petition of the defendant that he be not required to plead nor be put on trial, and determined that the matters above set forth as grounds for said motion and said petition are not sufficient in law. (3) That the court decided that, notwithstanding the matters above set forth, it had jurisdiction to hear and determine this case, and thereupon proceeded to conviction and sentence."

The alleged errors consist in the refusal of the criminal court to quash the writ of habeas corpus under which the plaintiff in error was brought into that court for trial on the indictment there pending against him, and the further refusal of the court to grant the prayer of the petition which asked that the accused be not required to plead to the indictment and be not put upon trial during the period he continued to be confined in the penitentiary in execution of the sentence imposed by the circuit court for Baltimore county. A motion has been made in behalf of the state to quash the assignments of error upon the ground that they are too vague and indefinite. As the questions involved are of some importance in the administration of the criminal law, we will proceed to consider them without regard for the moment to the motion filed by the Attorney General. Before doing this, however, we will notice a matter to which considerable parts of the oral argument and the brief for the plaintiff in error were devoted, though the question thus discussed is not presented by the petition assigning errors. The matter just indicated concerns the sentence imposed by the criminal court. It has been objected to the sentence, first, that it is cumulative--that is to say, by its terms it was not to begin until the expiration of a prior sentence imposed by another and a different tribunal; and, secondly, that it does not appear and has not been shown that the judge of the criminal court had before him any record from the circuit court for Baltimore county to guide him in fixing the date for the beginning of the sentence which he pronounced. In 25 Am. & Eng.Ency.L. (2d Ed.) 303, it is said: "When a defendant is already in execution on a former sentence, sentence of imprisonment may be given against him to commence from the expiration of the term of imprisonment which he is at the time serving;" and in support of the text the subjoined cases are cited in note 11: Wilkes v. Rex, 4 B.P.C. (Toml.Ed.) 360, 4 Burr. 2575; Wallace v. State, 41 Fla. 547, 26 So. 713; Kite v. Com., 11 Metc. (Mass.) 581; Mims v. State, 26 Minn. 498, 5 N.W. 374; Ex parte Ryan, 10 Nev. 261; Mills v. Com., 13 Pa. 630; Russel v. Com., 7 Serg. & R. 489. See Hockheimer, Crim.Law, § 195. If a court exercising jurisdiction in criminal cases may lawfully impose a sentence to begin in the future upon the expiration of a prior sentence, it can make no possible difference whether the prior sentence was imposed by the same or by some other court deriving its power from the same authority. Jurisdiction to inflict cumulative punishment is dependent, not on the accident that the offender has been convicted twice, or oftener, before the same tribunal, but upon the fact that distinct violations of the law have been committed by one individual whose malefactions merit separate, and therefore cumulative, penalties. Authority to sentence at all is incident to and a consequence of the power to try an accused, and the right to try is founded on the fact that the crime was committed within the jurisdiction of the court, and upon the further fact that the prisoner, after being indicted, is present in person before the court during the trial. It is not material how or by what means he was brought into court, as will be shown later on in discussing another phase of the case. If the court which imposed a sentence that is to begin upon the expiration of a prior punishment inflicted by some other tribunal of the same commonwealth has jurisdiction of the offense charged and over the culprit, it can unquestionably proceed to try him, and upon conviction can sentence him for that violation of the law by imposing a cumulative penalty. If this were not so, the subsequent offense might remain unpunished by reason of the death of material...