State ex rel. Cutrer v. Pitcher

• Decision Date: 28 November 1927
• Docket Number: 28933
• Citation: 164 La. 1051,115 So. 187
• Court: Louisiana Supreme Court
• Parties: STATE ex rel. CUTRER v. PITCHER, General Manager of State Penitentiary. In re CUTRER

115 So. 187

164 La. 1051

STATE ex rel. CUTRER v. PITCHER, General Manager of State Penitentiary.

In re CUTRER

No. 28933

Supreme Court of Louisiana

November 28, 1927

G Wray Gill, William C. Orchard, and Sam Schwing Kiblinger, all of New Orleans, for relator.

Percy Saint, Atty. Gen., and E. R. Schowalter, Asst. Atty. Gen for respondent.

OPINION

O'NIELL, C. J.

Ike Cutrer was indicted for murder, in the Twentieth district court, in West Feliciana parish, and entered a plea of guilty of manslaughter, which was accepted, and he was sentenced to imprisonment in the state penitentiary for a term not lessthan 10 or more than 12 years. He was sent immediately to the state penitentiary and began serving the sentence. That was in April, this year. In September, having served more than 5 months of his term, he brought habeas corpus proceedings in the district court in East Baton Rouge parish. against the general manager of the state penitentiary, contending that the indeterminate sentence which had been imposed was illegal, because the minimum term exceeded two-thirds of the maximum, and was therefore violative of Act 222 of 1926, p. 358. Hence he prayed to be released from custody. After hearing the case the district court recalled the writ of habeas corpus and dismissed the suit. The case is before us on writs of certiorari and mandamus.

The sentence imposed upon the relator was illegal, because Act 222 of 1926 requires that, in imposing an indeterminate sentence, the judge shall make the minimum term of imprisonment not more than two-thirds of the maximum. The purpose of the statute is to fix the time at which a convict shall become eligible for parole.

In State v. Blakeney (No. 28833) ante, p. 669, 164 La. 669 114 So. 588, the minimum term of the indeterminate sentence exceeded two-thirds of the maximum term imposed, and for that reason we declared the sentence illegal and remanded the case to the district court for the judge to impose a sentence according to the provisions of Act 222 of 1926. In remanding the case we said:

"The minimum term of 18 months imposed in this case is more than two-thirds of the maximum term of 24 months. It is not our province to correct the error by reducing the minimum sentence to 16 months, or less. It is the duty of the district judge to impose the sentence according to law, and to determine whether the minimum sentence shall be exactly two-thirds of the maximum, or less than two-thirds of the maximum, and, if less, how much less. The sentence being illegal, the case is in the same condition as if no sentence at all had been imposed, and it must be remanded for the judge to impose a legal sentence. The invalidity of the sentence, of course, does not affect the validity of the verdict."

By the same token the invalidity of the sentence in this case should not make the conviction invalid. All that needs correcting is the sentence. It is argued that the district court in which the relator was convicted has lost jurisdiction over the case and that, as no other court has authority to sentence the relator, he must be released from custody. His counsel cite four decisions by other courts in support of the proposition that when a sentence has been partly executed the court that imposed it has no authority to change or amend it, viz.: United States v. Howe, Judge (C. C. A.) 280 F. 815, 23 A. L. R. 531; Stewart v United States (C. C. A.) 300 F. 769; Emerson v. Boyles, 170 Ark. 621, 280 S.W. 1005, 44 A. L. R. 1193, and In re Jones, 35 Neb. 499, 53 N.W. 468. The reason why, in each of those cases, a partial execution of the sentence deprived the judge who had imposed it of the authority to change it, was that the sentence was valid. In United States v. Howe, Judge, he undertook to reduce the sentence from 6 years' imprisonment to 3 years' imprisonment, after the case had been appealed to the circuit court, and the verdict and sentence had been affirmed, and the mandate of the Circuit Court had been sent down to Judge Howe's court for execution. When the judge thereafter entered an order reducing the term of imprisonment from 6 to 3 years, the United States attorney proceeded by mandamus in the Circuit Court and compelled Judge Howe to obey the mandate of the Circuit Court. The sentence to imprisonment was a valid sentence, and there was no contention that it was not valid. The decision is authority for the proposition only that, when a verdict and sentence have been appealed from and are affirmed by the appellate court, the judge who imposed the sentence, having lost jurisdiction over the case, has no authority to change the sentence, but must order...