Savage v. Alvis
| Decision Date | 02 June 1959 |
| Citation | 161 N.E.2d 633,109 Ohio App. 523 |
| Parties | , 81 Ohio Law Abs. 267, 12 O.O.2d 145 Cordell SAVAGE, Petitioner-Appellee, v. R. W. ALVIS, Warden of the Ohio Penitentiary, Respondent-Appellant. |
| Court | Ohio Court of Appeals |
Cordell Savage, Columbus, pro se.
Mark McElroy, Atty. Gen. of Ohio, and William M. Vance, Asst. Atty. Gen., for appellant.
Cordell Savage, appellee herein, filed a petition for writ of habeas corpus in the Court of Common Pleas in Franklin County, Ohio seeking his release from the Ohio Penitentiary and from the custody of Ralph W. Alvis, Warden of the Ohio Penitentiary, appellant herein.
Savage was sentenced to the Ohio Penitentiary by the Common Pleas Court of Montgomery County, Ohio for term of one to five years under the provision of Section 2901.11 of the Revised Code. It was after his third escape from the Dayton Correction Farm that the case was taken before the Montgomery County Grand Jury and an indictment returned charging him with escaping from confinement, imposed as a result of a criminal proceeding. Section 2901.11, supra, provides in part as follows:
'* * * No person shall escape, attempt to escape * * * from any confinement or restraint imposed as a result of a criminal * * * proceeding, * * *.'
This section in its present form was enacted effective October 2, 1953 in ASHB No. 88 passed by the 100th General Assembly of Ohio. It was formerly known as Section 12408 of the General Code. Among the changes made in 1953 we note that whereas it previously applied to attempts to escape under the new form it applied to both escapes and attempts to escape. There were numerous other changes made at the same time.
It is also noted that ASHB No. 88, supra, amended another section of the law, Section 2917.14, penalizing conveying articles or things into places of confinement to aid an escape. Among the places of confinement added to Section 2917.14, supra, by the amendment, were county jails, workhouses or city jails.
What is now Section 2901.11, supra, was originally enacted in 1906 being 98 Ohio Laws, p. 177, at p. 180, which provided in substance that convicts or prisoners employed 'at any work or at any place' should be 'deemed guilty of felony' if they 'attempt to escape from the custody of such guard or guards; or from any stockade or jail in which said convict or prisoner may be imprisoned or housed; * * *.'
Thus from 1906 to 1953 this section dealt with attempts to escape and in the sweeping amendments of 1953 was made to apply to escapes as well as attempts to escape. The record discloses that after the indictment of Savage for his third escape from the Dayton Correction Farm, he entered a plea of guilty and received the sentence here under attack.
It appears that on January 28, 1952, Savage was given a one-year sentence in the Dayton Correction Farm on a charge of assault and battery and that he escaped on June 12, 1952. While at large he was convicted in Kentucky on a burglary charge and sentenced to a Kentucky reformatory for one year. Upon his release by the Kentucky authorities on November 4, 1953, Savage was brought back to the Dayton Correction Farm and a one-year penalty was added to his sentence. However, the following June 15, 1954 he again escaped and while at large was convicted of violating the Dyer Act being sentenced to the United States Penitentiary at Atlanta, Georgia where he served from February 10, 1955 to December 8, 1957.
Savage was again returned to the Dayton Correction Farm but on July 28, 1958 he made his third escape and next was heard from in Indianapolis from whence he was returned to Dayton Correction Farm on August 5, 1958.
In his petition of writ of habeas corpus, Savage contended that he was wrongfully indicted under Section 2901.11 of the Revised Code and that he should have been charged under Section 2917.23 of the Revised Code, which section provides as follows:
'No person, having been committed to a workhouse, shall escape or attempt to escape therefrom.
'Whoever violates this section shall be imprisoned in such workhouse not more than double the term for which he had been originally sentenced.
The Court of Common Pleas of Franklin County, Ohio upheld Savage's objection and ordered his release. We have not been furnished with a copy of the opinion of the trial court and hence have no means of knowing the reasoning applied or the authorities relied upon by the trial court. The journal entry in this case, filed on March 20, 1959, reads as follows:
'This cause came on to be heard on the petition of Cordell Savage and the return of R. S. Alvis, Warden of the Ohio Penitentiary, respondent, to the Writ of Habeas Corpus issued herein, said respondent having brought the body of petitioner into court.
'Upon consideration of the pleadings, the evidence, and the arguments of counsel, the court finds that the petitioner has sustained the allegation of his petition; that he is in the custody of the respondent as the result of conviction on a charge of escape from a workhouse; that the indictment under which said conviction was had was brought under Section 2901.11 Revised Code, and sentence was imposed under said section of imprisonment in the penitentiary not less than one nor more than five years; that sentence should have been imposed under and the indictment drawn under Section 2917.23, Revised Code.
'It is therefore ordered that the Writ of Habeas Corpus be allowed and the petitioner released from custody forthwith.
'Exceptions saved to respondent.'
It is from this order that the appeal was taken. It should be pointed out that Section 2917.23, supra, appears first to have been enacted as part of the Municipal Code in 731 sections on May 7, 1869; 66 Ohio Laws, p. 145 at p. 196, being Section 279, Chapter XX--Workhouses. So far as we can learn this section, which formerly was Section 12840, General Code, previously Revised Statutes Section 2103, has since its enactment been unchanged except as modified in the several code revisions since.
At the outset, two differences appear between the two statutory provisions dealing with secapes. Section 2901.11, supra, dealing with escapes. Section 2901.11, supra, be invoked only after an indictment has been voted by the grand jury. This is because by its terms it provides for imprisonment in the penitentiary from one to five years as a possible penalty. The other section, 2917.23, supra, may be enforced by affidavit in the form usually applicable in misdemeanor cases. Thus there is an important difference between these two sections. We note also that if there is any conflict between the two, the section under which Savage was indicted is the later expression of the will of the General Assembly of Ohio.
Having determined that the section under which Savage was indicted represents the most recent expression of the will of the Ohio General Assembly, we wish to point out that in our opinion it is unnecessary to inquire into whether or not there is a conflict between Sections 2901.11, supra, and 2917.23, supra, and on this question we express no opinion whatsoever. No action whatever has been instituted against Savage under Section 2917.23, supra, and the question simply is not before us.
Likewise we do not feel it is necessary to consider or determine whether or not there has been any repeal by implication and on this question we express no opinion. In our judgment, this question, too, is not in the case.
Reference has been made to the title of the two sections as indicating the applicability of one or the other but the clear answer to this is that the Ohio Legislature does not enact the titles.
The authority of the legislative body to enact more than one penal statute covering substantially the same offense was upheld in the case of People v. Malavassi, 248 App.Div. 784, 289 N.Y.S. 163, in which the syllabus was as follows:
'Fact that an act is a crime under two or more sections of the Penal Code does not bar prosecution under either section, duty being on grand jury and the district attorney to determine under which of the applicable sections of the Code an indictment should be found.
'Penal statutes covering substantially the same offenses may stand together and one may be prosecuted under any one of those provisions making the act or acts an offense.'
It is well established that the legislative authority may make several crimes out of a single transaction. In the case of the State v. Benjamin, 102 Ohio App. 14, 132 N.E.2d 761, decided by the Cuyahoga County Court of Appeals, the first branch of the syllabus is as follows:
'The Legislature may carve out of a single act or transaction several crimes of offenses, so that an individual may at the same time, and in the same transaction, commit several separate or distinct crimes, any may be prosecuted for all the crimes committed, without the prosecution for one crime being a bar to the prosecution or prosecutions for other crimes.'
See also State v. Trunzo, 137 N.E.2d 511, 512, which was decided by the Cuyahoga County Court of Appeals, in which the fifth and sixth branches of the syllabus are as follows:
'Four consecutive sentences, as distinguished from concurrent sentences, could be imposed on defendant who was convicted of burglary,...
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