Opinion
No. A-9198.
February 5, 1937.
(Syllabus.)
1. Punishment — Effect of Delay in Enforcing Sentence of Imprisonment. The time fixed for the execution of a sentence, or the commencement of its execution, is not one of its essential elements, and, where the penalty is imprisonment, the sentence may be satisfied only by the suffering of the actual punishment imposed.
2. Same — Rearrest of Convicted Defendant on Unexecuted Judgment and Sentence. Where a convicted defendant is at liberty and has not served his sentence, and the same is not stayed as provided by law, he may be arrested as on escape and ordered into custody on the unexecuted judgment and sentence.
3. Same — Expiration of Time Without Imprisonment not Execution of Sentence. Expiration of time without imprisonment is in no sense an execution of the sentence.
4. Pardon — Judges and County Officers Without Authority to Pardon Persons Convicted. Judges, county attorneys, and sheriffs have no power or authority to pardon persons convicted in the courts of this state. The power to pardon after conviction is, under the Constitution, vested exclusively in the Governor.
Original proceeding on the application of J. H. Porter for a writ of habeas corpus to be directed to the warden of the state penitentiary. Writ denied.
The petition, herein duly verified, omitting title, is as follows:
"Your petitioner, J. H. Porter, represents and states to this Honorable Court that he was sentenced for the crime of manslaughter on March 23, 1929, and his term of imprisonment was to begin at and from March 23, 1929, that he is restrained of his liberty and is unlawfully imprisoned by the Warden of the Oklahoma state penitentiary at McAlester, Oklahoma, by virtue of a commitment issued out of the Superior Court of Okmulgee county, Oklahoma, on September 1, 1936, a copy of which is hereto attached, marked Exhibit 'A' and made a part of the petition.
"Your petitioner alleges that said imprisonment is illegal because on or about July 7, 1931, the petitioner surrendered to the Superior Court officials of Okmulgee county and was in custody of said officials until March 23, 1936, when the term of his imprisonment expired and that said sentence and judgment has therefore become null ind void and of no force and effect.
"Wherefore your petitioner prays your Honorable Court to grant a writ of habeas corpus, and that he be discharged without delay from such unlawful imprisonment."
Exhibit A duly certified as a true copy, omitting formal parts, is as follows:
"State of Oklahoma vs. J. H. Porter, Defendant. No. 2032.
"The prisoner, the above named J. H. Porter, defendant, being personally present in open court and having been legally presented by information and arraigned and having plead not guilty to the crime of murder as charged in said information and having been then and there in said court, duly and legally tried and convicted of said crime, and upon being asked by the court whether he had any legal cause to show why judgment and sentence should not be pronounced against him, and giving no good reason in bar thereof; and none appearing to said court,
"It is therefore ordered, adjudged and decreed by the court that said J. H. Porter be confined in the state penitentiary at McAlester, in the state of Oklahoma, for the term of seven years for said crime by him committed, said term of imprisonment to begin at and from the 23rd day of March, A.D. 1929, and that said defendant pay the costs of this prosecution, for which execution is awarded.
"It is further ordered, adjudged and decreed by the court, that the sheriff of Okmulgee county, state of Oklahoma, transport said J. H. Porter to the said penitentiary at McAlester, in the state of Oklahoma, and that the Warden of said penitentiary do confine and imprison said defendant in accordance with this judgment, and that the clerk of this court do immediately certify, under the seal of the court and deliver to the sheriff aforesaid, two copies of this judgment, one of said copies to accompany the body of the said defendant to the said penitentiary and to be left therewith to be warrant and authority for the imprisonment of said defendant in said penitentiary, and the other copy to be the warrant and authority of said sheriff for the transportation and imprisonment of the said defendant as hereinbefore provided. Said last named copy to be returned to the clerk of said court with the proceedings of said sheriff thereunder endorsed thereon.
"Done in open Court this 23rd day of March, 1929.
"[Seal] Signed: J. H. Swan, Judge."
To this petition the Attorney General has interposed a demurrer to the effect that, upon the facts stated, petitioner is not entitled to the relief sought.
C. E. B. Cutler, for petitioner.
Mac Q. Williamson, Atty. Gen., for respondent.
The petitioner is in the custody of the warden of the state penitentiary under sentence of confinement in the state penitentiary at McAlester for the term of seven years, pronounced and entered March 23, 1929, by the superior court of Okmulgee county, Henryetta division, in pursuance of the verdict of a jury finding him guilty of manslaughter in the first degree. The commitment in conformity with said judgment did not issue until September 1, 1936, on which date petitioner was committed to the custody of the warden of the state penitentiary.
In this proceeding petitioner by his counsel, C. E. B. Cutler, presented to this court on September 9, 1936, a petition averring that he is unlawfully imprisoned in the state penitentiary at McAlester for reasons stated.
Counsel in his brief says:
"The court officials were to blame for Porter's running at large at a time when he should have been locked up in prison; they intentionally planned for his running at large by telling him to remain subject to call of the sheriff. They agreed that Porter's prison term was to run from the date of his sentence and fixed the day in his sentence and judgment, as follows:
" 'Said term of imprisonment to begin at and from the 23 day of March, A.D. 1929.' "
The contention on behalf of petitioner is that the sentence has been fully satisfied by reason of said agreement and by lapse of time. Citing Ex parte Eley, 9 Okla. Cr. 76, 130 P. 821, 823; In re Jennings (C. C.) 118 F. 479.
The uniform holding of this court is that the time fixed for the execution of a sentence, or the commencement of its execution, is not one of its essential elements, and where the penalty is imprisonment the sentence may be satisfied only by the suffering of the actual imprisonment imposed. Ex parte Eldridge, 3 Okla. Cr. 499, 106 P. 980, 27 L. R. A. (N. S.) 625, 139 Am. St. Rep. 967; Ex parte Alexander, 5 Okla. Cr. 196, 113 P. 993; Ex parte Oliver, 11 Okla. Cr. 536, 149 P. 117, 119; Ex parte Smith, 17 Okla. Cr. 578, 190 P. 1092; Ex parte Smith, 33 Okla. Cr. 175, 242 P. 284. And see Ex parte Riggert, 33 Okla. 303, 125 P. 485.
In Ex parte Alexander, supra, it was held that:
"The time fixed for execution of a sentence, or for the commencement of its execution, is not one of its essential elements, and, strictly speaking, forms no part of the judgment and sentence, which is the penalty of the 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 that, where the penalty is imprisonment, the sentence may be satisfied only by the actual suffering of the imprisonment imposed, unless remitted by death or some legal authority.
"Where a convicted defendant is at liberty and has not served his sentence, and the same is not stayed as provided by law, he may be arrested as on escape and ordered into custody on the unexecuted judgment. * * *
" 'Expiration of time without imprisonment is in no sense an execution of the sentence.' "
In the case at bar a stipulation of facts was filed, supported by affidavit of J. Harry Swan, wherein affiant states that he was the superior court judge of Okmulgee county from 1923 to 1935, and was the presiding judge in the case of State v. J. H. Porter; that some time in 1931, said J. H. Porter reported to affiant and told him if he had to serve his sentence, he wanted it to begin at once; that he informed him that his sentence had already started, but to report to the sheriff, that he was subject to his command; that it was the understanding between the county attorney and officials, at the time of sentence, that it was to begin from the date as shown in the judgment; and as affiant is informed and believes, that said Porter did report to the sheriff, and that he was considered as a prisoner on leave by all of the officials of the county at the time.
It was further agreed that petitioner then returned to his home near the city of Seminole and continued to reside there until the sheriff on the commitment in question arrested him and delivered him to the warden.
In the case of Ex parte Oliver, supra, we said: "The only way of satisfying a judgment judicially is by fulfilling its requirements. This cannot be waived, as here claimed, by the officers of court, whose duties with respect to its judgments are purely ministerial."
In the Eley Case, supra, relied on, there was a conviction, commitment, and imprisonment. After the sentence was partly executed, the prisoner was told to go home. He went and there stayed under the supervision of the sheriff. As stated in the opinion: "The petitioner in this case was in the custody of the sheriff and subject to his call at all times until the expiration of the prison sentence, and was in legal effect a 'trusty.' "
In the instant case, if the agreement on the part of the court, county attorney, and sheriff with the petitioner could satisfy the judgment and sentence, it would in effect be an exercise of the power to pardon.
The authority "to grant, after conviction, reprieves, commutations, paroles, and pardons for all offenses, except cases of impeachment, upon such conditions and with such restrictions and limitations as he may deem proper" is by the Constitution (article 6, § 10) vested exclusively in the Governor, and such action on the part of these officials was wholly unauthorized and without authority of law.
It follows from the foregoing, the judgment being valid and the sentence unserved, the commitment of petitioner in execution of the judgment was and is a legal and valid imprisonment.
For the reasons stated, the demurrer is sustained and the petition for writ of habeas corpus will be denied. It is so ordered.
DAVENPORT, P. J., and BAREFOOT, J., concur.