Stinehagen v. Olson

• Decision Date: 16 February 1945
• Docket Number: 31873.
• Citation: 17 N.W.2d 674,145 Neb. 653
• Parties: STINEHAGEN v. OLSON.
• Court: Nebraska Supreme Court

17 N.W.2d 674

145 Neb. 653

STINEHAGEN v. OLSON.

No. 31873.

Supreme Court of Nebraska

February 16, 1945

Syllabus by the Court.

Under the provisions of section 28-736, R.S.1943, a sentence committing a person to the penitentiary, even though it might be reversed on appeal or set aside on habeas corpus, would nevertheless, be effective to sustain a conviction for breaking custody and escaping therefrom while confined under it.

Roy Stinehagen, pro se.

Walter R. Johnson, Atty. Gen., Carl Peterson, Asst. Atty. Gen., and H. Emerson Kokjer, Deputy Atty. Gen., for appellee.

Heard before SIMMONS, C. J., PAINE, CARTER, MESSMORE, YEAGER, CHAPPELL and WENKE, JJ.

WENKE Justice.

This habeas corpus proceeding was instituted in the district court for Lancaster county by the relator, Roy Stinehagen, against Neil Olson, Warden of the Nebraska State Penitentiary, as respondent, to obtain relator's release. From an order denying the writ and dismissing his petition, the relator has appealed.

Relator was originally sentenced to the penitentiary from Custer county for a period of three years on an insufficient fund check charge. He raises several reasons why this commitment was void. They are not material here for he was discharged from this commitment on October 2, 1943.

However, on September 5, 1939, while he was serving this sentence he took leave from the penitentiary without the consent of the authorities in charge. He was later, on August 1, 1941 apprehended at Phoenix, Arizona, and returned to the penitentiary. After his return information was filed in the district court for Lancaster county on October 30, 1941 charging the relator with unlawfully and feloniously breaking custody and escaping from the Nebraska penitentiary on September 5, 1939, while confined therein upon conviction of a felony.

In this proceeding counsel was appointed for the relator, plea of not guilty was entered and trial to a jury was had and he was found guilty. After the overruling of his motion for new trial the relator was sentenced to two years, same to commence upon completion of his former sentence. No appeal was perfected and it is under this sentence that the relator now serves.

The proceedings under the charge of breaking custody were in all things regular and unless the relator can in this proceeding raise the question of the former commitment being void as a basis for his release, the petition does not state facts sufficient...