410 MASSEY V. CUNNINGHAM. [169 MASSEY V. CUNNINGHAM. 0,PiniOn delivered Septeinber 28, 1925: CRIMINAL LAW—EXECUTION OF SENTENCE.—Where the accused was , sentenced to serve 90 days in prison, :and was released by the §beriff during good behavior, the sheriff wak authorized to re-arret hini after 90 days fiad expired; aS the shei-iff e*ceeded his' powers in . releasing him, and the judgment could be satisfied ;Only by his actual imprisonment. , ApPeal frobi Pulaski Circuit Court, Fir4 Division; J6h;b*W. Wade, Judge; affirmed:, STATEMENT OF FACTS. !,.. Clifford Massey filed a petition in,the; circuit court for a writ of habeas corpus on the: ground that George W: ' Cunningham, as a :warden of the Pulaski County C011,,, vidt farm, was illegally restraining,him : of, his liberty. . The material facts are-practically undisputed, and are' as follOws ,On . January . 28, 1922,i ,Clifford Massey >was convicted in the circuit court ,of p iflaski County ,of the crime Of transporting intoxicating liquors, and Was .sen, tenced by the Court to ninety ,days': imprisonment, and to pay, a fine Of $1,000. He served his,term of imprisonment , and, paid $500 of his fine. His mother gave . her, note for 4500 for the: balance, Of the, fine. ; At the time of his , conviction two other criminal cases were pending against him in the circuit court upon appeal 'from the, municipal, court. . After Massey . and his mother made default in the payment of the 8500, note, the two'cases just referred ,to: were.called for trial, and it was agreed between the State and ,the defendant that the judgments of the lower court shonld. 'be affirmed,
'ARK.] MASSEY V. CUNNINGHAM. 411 which Was done. In one' of these cases 'Clifford Massey was fined $100 in the lower court, and the judgment was affirmed in the circuit court. The record in the other case shows that by consent of the State and the defendant, the judgment of the Little RoCk municipal court f6r a fine of $100 and ninety days' imprisonment was affirined. Judgment•JO this effect was accordingly 'entered in' the circnit court: • At the tinie these censent •judgnieritS were entered of record Massey was absent,' and the judgmdnts were cOnsented to by his attorney in order to prevent .a forfeiture on his bond. ''Subsequently Ma j ssey returned to Little Rock, Pulaski County, Arkansas, and was arrested by the sheriff of Pulaski CountT on two commitments . issued on the last tWo judgments referred to. .Massey entered into negotiations with the sheriff of Pulaski County whereby he was to pay the $500 note given for -a'Part of his , $1;000 'fine above . .referred to,. and in consideration thereof the' heriff would hold up the conrinitments in :the .last two caSes during his goOd behavior. . MaSsey paid the $500 to the sheriff, Whieh was appropriated . by him to, the payment Of the balance of his fine. . The judgment of conviction iii the two last-mentioned cases was in March, 1923. -ln April, 1925,' the 'sheriff found upon investigatiOn that Clifford Massey Was again violating the law, and : he arrested . him . ori the . commitnients:jj the two cases fust referred to; and confined him 'on the donnty convict farin, where prisoners sentenced to jail in Pnlaski County are by law confined. MaSsey filed a petition for a writ of habeas corpus against George W. Cun-ningham; in whose custody he Was placed, as warden .of the county convict farm, on the 'ground that the' sheriff had no right to rearrest : him and cmnmit him to jail after a period of 'considerably more than ninetST days after , the date of his original commitment for a term of 'three Months or ninety days in the county jail. Under these facts the circuit court *as of the opinion that the petition of Clifford Massey for a writ of habeas corpus should be dismisised, and that he should he re'-
412 MASSEY V. CUNNINGHAM. L169 manded into the custody of George W. Cunningham; as warden on, the county farm of Pulaski County to . cora-plete his sentence in accordance with the terms of his original commitment:. From the judgment rendered.in accordance with the findings of the circuit court, Clifford Massey has duly prosecuted an appeal to this :court.. Murphy , ,:Mcffaney c6.Dunaway, for appellant. H. W. Applegate, Attorney General, and Dardeli Moose, Assistant,. for appellee: HART, J., (after stating the facts). It appears froM the record that the sheriff of Pulaski County -obtained two commitments based on judgments rendered in the Pulaski Circuit 'Court in two cases against the deifendant; In one of the cases the defendant' was fined $100, and in the other case he was fined $100 and sentenced to serve ninety days' imprisonment in.the county jail.. After the defendant was arrested and : placed ifi. jail, the sheriff made an agreement with him that :he would release hini from jail during good behavior,: if :he would pay a nbte of $500, whieh his mother had given a former sheriff of Pulaski COunty for the balance ,of a fine :of $1,000 adjudged against the defendant in the :Pulaski Circuit Court.. Pursuant to this agreement, the defendant paid the $500, and was by the:sheriff released from jail. After more than three months had elapsed, ,the sheriff re-arrested the defendant and imprisoned: him for : the reason that he:had violated the conditions of his release by again being guilty of criminal conduct. The defendant, MaSsey, sued out a . writ of habeas corpus On the ground that he could nOt be 'compelled VI serve the ninety days' imprisonment imposed: upon him by the cir-cuiticonrt, because more, than : ninety days had elapsed after he had been discharged from custody by the sheriff. • There is a &afflict 'between the authorities as to:the power of a court to • suspend sentence for an indefinite period of time, or- to suspend the execution 'of a sentenee indefinitely.' The Stpreme 'Court of the United States
ARIid MASSEY V. CUNNINGHAM. 413 in a well = considered opinion by Chief Justice :White has held that; in the absence:of a statute, a federal district court exceeds its power 'by ordering that the execution of a sentenceto imprisonment imposed by it upon a plea of guilty, 'be suspended'indefinitely 'during good behavior upon 'considerations wholly exiraneous to the legality of the cohviction. Ex parte United States, 242 U. S. 27; Ann., Cas. 1917B, p. 355, L. R. A. 1917E. p. 1178.. . The contrary decisions on this qnestion may be found in notes to the case just cited and in a case note to 26 A. L. R: at p. 399. Our court has not decided this mooted question, 'but it has held that a sentence may be pronounced on a plea of guilty at a term subsequent to that at which the plea.waS entered. Thurm'an v. State, 54 Ark. 120, and Cox IT .'State, 114 Ark. 234, and cases cited. The reason for holding that a sentence may be suspended tO a:subsequent term is:quite apparent. It may be that ,the .punishment has been , left to the court, and the presiding judge: wishes to:"consider the matter -further. 'It may be. that a like, case is. pending in the appellate court, and that, it is deemed best • to await its decision. Again the Court may:.think it just . to suspend sentence for a while . , to the end that the offender May.apply for , executive clemency. Other reasons might -be giv.en; .but . no! useful pur p ose 'could be served thereby. Smile courts make a 'difference between the powet to suspend the imposing of .a sentence and the power to suspend the execution- of a sentence., . . It has, been unifotmly held that where a prisoner, has escaped:'and is rearrested after, the term for Which he was eommitted had expired 'by lapse of time, he may :be compelled to serve out: his term of imprisomnent under the original sentence.' In re EdWards, 43 N. L . . 555 ; Hollon v..Hopkins, 21:Kan. 459 ;.Dolan's case, 101 ,Mass. 219: Ex parte Bell, 56 Miss: 282; Cleek v. Commonwealth, 21 Grat., Va.. 777 ;'State v. Coekerham. 24 N. C. 204; and 2 Bishop'S New Criminal Procediire, § 1385. ' The reason is that the tithe at which a sentence:shall be 'carried into exechtioh forms no part hf the jUdgment
414 MASSEY V. CUNNINGHAM. [169 of the court. The judgment is the penalty of ihe law as declared by the court, while the direction with respect to the time of Carrying it into effect is in the nature of an aWard of execution. So it is said that the essential por. tion of a sentence iS the punishment, including the kind of punishMent and the amount thereof, without reference to the time when it is to be inflicted. Of course, the sentence should as a rule be strictly executed; but it can not be changed or modified, except by' legal action 'of -some sort. • It ha' s been generally said that, where the penalty .is imprisonment, the sentence of the law is to Ibe satisfied .only by the actual suffering of the imprisonment imposed unless reMitted . by death or by . some legal 'authority. The expiration . of. time without imprisoninent is in no sense an execution of the sentence. In the application of the rule it has been held that, in cases of a void stay of execution issued by a court where the convicted defendant is at liberty .and has mit serted his sentence, he ma* be rearrested as an 'escape, and ordered into * custody upon the unexecuted sentence.' Ex parte Vance; 90 'Cal. 208, 27 Pac. 209;13 L. R. A. 574 ; PeoPle v. Patrich, 118 Cal. 332, 50 Pac. 425; Ex parte Collins (Cal. Ap.) 97 Pac. 188 ; Neal v. State, 104 Ga. '509, 30.S. E858, 42 L. R. A. '190, 60 Am: St. Repts. 175; 'Mann v. 'People. (Colo. Ct. of Ap) 66 Pac. 452 ;. and. Spencer v. State (Tenn.), 140 S. W: 597,38 L:* R. A. (l\T. S.) 684. ! * The reasoning of these cases applies with greater force to the case at bar. The' sheriff was not vested with judicial authority or the•power to . grant 'paroles or re-• prieves. It is not necessary to discuss the question of 'whether the Legislature 'could confer upon him any such authoritY. It is srufficient to' say that it has not done so. In the present . case it is apparent from the record that the sheriff released Massey mainly as a reformatory 'measiire to secure future good behavior on his part. It is also apparent that Massey acted in goodlaith in making. the agreement ; but 'his: act . was none the less voluntary:: The sheriff wholly exceeded his powers releas-
ing Massey from imprisonment, and his act was void. This being true, he had the right to rearrest Massey to the end that he might serve his sentence: It is immaterial that more than ninety days have elapsed since the; sheriff ieleased Massey. The latter was not in pri§on during that time, and the judgment tould he satisfied only by.his actual imprisonment for the adjudged period. The lime of Massey's absence from confinement, under a -Void . release, can not be •considered as having been . spent in jail in satisfaction, of the 'judgment which required his actual imprisonment. . It followis that :the judgment of the circuit court in ' dismissing Massey's petition for a writ Of habéas; co'rpus was correct, and it will be affirmed..
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.