State v. Pishner

• Decision Date: 31 March 1914
• Citation: State v. Pishner, 73 W.Va. 744, 81 S.E. 1046 (W. Va. 1914)
• Parties: STATE v. PISHNER.
• Court: West Virginia Supreme Court

81 S.E. 1046

73 W.Va. 744

STATE v. PISHNER.

Supreme Court of Appeals of West Virginia.

March 31, 1914

Submitted February 10, 1914.

Syllabus by the Court.

A prisoner who escapes from jail by force and violence, pending the determination of a writ of error to a judgment of conviction for a felony, resulting in a reversal thereof and a discharge of the prisoner, does not thereby violate section 11, c. 147, serial section 5259, Code 1913.

The term "conviction," as used in that section, implies final judgment of court, citing Words and Phrases, vol. 2 pp. 1584-1591.

Additional Syllabus by Editorial Staff.

The term "sentence" means the final judgment or determination by the court in a criminal proceeding, citing Words and Phrases, vol. 7, pp. 6411, 6412.

Error to Circuit Court, Tucker County.

Nick Pishner was convicted of an escape from jail, and brings error. Reversed, and prisoner discharged.

Robinson and Lynch, JJ., dissenting.

D. E Cuppett, of Thomas, and J. P. Scott and Chas. D. Smith, both of Parsons, for plaintiff in error.

A. A. Lilly, Atty. Gen., Frank Lively, Asst. Atty. Gen., and John B. Morrison and J. E. Brown, both of Sutton, for the State.

WILLIAMS, J.

Nick Pishner was convicted upon an indictment charging him with feloniously escaping from jail, by force and violence, in violation of section 11, c. 147, serial section 5259, Code 1913, and was sentenced to one year's confinement in the penitentiary. This writ of error was awarded to the judgment.

Previous to his escape he had been adjudged guilty of a felony and was confined in jail awaiting the decision of this court upon a writ of error to that judgment. On the 27th of February, 1913, pending his appeal, he broke jail and was recaptured the next day. On the 7th of March, 1913, still pending his appeal, he was indicted for escaping from jail. On the 17th of June, 1913, this court reversed the judgment of the circuit court and discharged him, on the ground that there was no evidence to warrant his conviction. State v. Pishner, 78 S.E. 752. He was, nevertheless, tried under the present indictment in September, 1913, found guilty, and sentenced to confinement in the penitentiary for one year. On his trial he offered in evidence the mandate of this court discharging him from custody, and the trial court refused to admit it, evidently holding that the crime of jail-breaking for which he was indicted did not depend upon his guilt or innocence, and therefore was not affected by his final discharge. The correctness of that holding depends upon the meaning of the word "conviction" as used in the statute above referred to, which reads as follows:

"A person confined in jail on conviction of a criminal offense, who escapes thence by force or violence, shall be confined in the penitentiary one year, if previously sentenced to confinement therein, or be confined in jail six months, if previously sentenced to confinement in jail; the term of confinement under this section to commence from the expiration of the former sentence."

As generally understood the term "conviction" means simply the establishing of guilt, either by the verdict of a jury or by plea of confession. The Supreme Court of Virginia, in Blair v. Commonwealth, 25 Grat. 850, gave the word that construction in that provision of the Constitution which authorizes the Governor "to grant reprieves and pardons after conviction." It was held in that case that the Governor had the power to pardon a person after a verdict of guilty and before judgment thereon by the court. See, also, 1 Bishop's Criminal Law, §§ 903, 963, and 2 Words and Phrases, 1585. Still it is often used in a broader sense and embraces a final judgment. The Legislature evidently intended it to have its wider meaning in the statute. This construction is clearly borne out by other terms of the statute fixing the term of confinement to begin at "the expiration of the former sentence." If there is no former sentence, then there is no time fixed for the beginning of the term of sentence for jail-breaking. We cannot conceive that the Legislature intended to make jail-breaking a felony, by one who was not actually guilty of a previous felony. If it intended to make escape from jail by violence and force a felony, regardless of the prisoner's guilt or innocence of the crime for which he was then in custody, there is no reason for making the escape in one instance a felony and in the other a misdemeanor. This construction of the statute is necessary to make it harmonize with the following section, which makes it a misdemeanor for any person lawfully imprisoned in jail, "and not sentenced on conviction of a criminal offense," to escape therefrom by force and violence. The term "sentence" means the final judgment or determination by the court in a criminal proceeding. 7 Words and Phrases, 6411. This section, therefore, embraces persons who have been tried and found guilty by a jury, either of a misdemeanor or a felony, and on whom judgment of court has not been pronounced, which is the character of the case now before us. Our conclusion therefore is that section 11, chapter 147, serial section 5259, applies only to such persons who have been convicted by final judgment of the court, and that section 12, serial section 5260, applies to all other persons, lawfully imprisoned in jail and escaping therefrom by force and violence.

Under a statute permitting the conviction of a person for crime to be shown in order to affect his credibility as a witness, the Supreme Court of Massachusetts, in Commonwealth v. Gorham, 99 Mass. 420, held that conviction implied a judgment of the court. Likewise, under a statute making void the license of a person to sell intoxicating liquors who shall be convicted of violating the liquor laws, it was held that a final judgment of the court conclusively establishing guilt was essential. Commonwealth v. Kiley, 150 Mass. 325, 23 N.E. 55. Under an Illinois statute declaring persons convicted of any of the crimes therein enumerated to be deemed infamous, and disqualifying them from holding any office of honor, trust, or profit, or voting at any election, or serving as jurors, or giving testimony, it was held by the Supreme Court of that state, in Faunce v. People, 51 Ill. 311, that a judgment of court was necessary to constitute a conviction. Under a statute of Rhode Island making a person convicted of larceny liable to the owner of the money or article taken for twice its value, unless it was restored, and for its value in case of restoration, the court of that state, in Barker v. Almy, 20 R.I. 367, 39 A. 185, held that conviction implied a judgment of the court.

The writ of error stayed the proceedings in the court below, and it was necessary to await determination of the appeal before it could be known whether defendant was finally adjudged to be guilty, which is the meaning of the term "conviction" in the statute above quoted.

To constitute escape from prison a crime, in any event, it is essential that the prisoner be lawfully in custody. 11 A. & E. E. L. (2d Ed.) 304; 16 Cyc. 540; 1 Russell on Crimes (7th Eng. Ed.) 566. But as the indictment was held to be good, and the judgment not void, but only voidable, it cannot be said that the prisoner's confinement in jail, awaiting the judgment of this court on writ of error, was unlawful.

The mandate of this court, reversing the judgment below and discharging the prisoner, was admissible to prove his innocence of the crime of which he had been adjudged guilty, and that he was not confined in jail under final judgment of conviction for a felony. The mandate was conclusive proof that he was not guilty, because it discharged him from the indictment. Not having been adjudged guilty in that case, he should have been discharged on the trial of this indictment. The record discloses that the prisoner cannot lawfully be convicted of the crime for which he stands indicted, and we therefore reverse the judgment and discharge defendant from further prosecution under that indictment.

LYNCH, J., dissents.

ROBINSON J. (dissenting).

The statute certainly means what it says. It plainly says that "a person confined in a jail on conviction of a criminal offense, who escapes thence by force or violence, shall be confined in the penitentiary one year, if previously sentenced to confinement therein." That the defendant was confined in the Tucker County jail on conviction of a criminal offense, that he escaped thence by force and violence, and that he had previously been sentenced to confinement in the penitentiary, are admitted in the case. Then by the very terms of the statute is he not one who has violated it and who must be confined in the penitentiary one year for such violation?

There is nothing in the statute warranting the view that the provision quoted above embraces only one whose conviction shall not be reversed on appeal or otherwise set aside. It designates no such person. It does, however, designate any one who is in jail under conviction of a felony. And it forbids him to break jail while he has such status, on penalty of one year in the penitentiary. Yet the majority say that if, after he breaks jail, his status changes by a setting aside of the conviction, he has committed no crime under this particular provision of the statute. That is indeed saying that one erroneously convicted of a felony and sentenced therefor, though lawfully imprisoned by the judgment of a court of competent jurisdiction, may break jail without violating the very provision that fits his case. Then certainly, one who is advised that his conviction and sentence is erroneous and must be reversed on appeal has strong encouragement to ignore the law that in terms applies to him.

The...