Effect of escape. If the prisoner escapes during the first term, the second does not expire when it would have expired had he remained in prison as the time during which he has been at liberty must be served in addition to the time he was actually in prison.99 Under the statutes in some jurisdictions where a prisoner sentenced for two consecutive terms escapes and is convicted of an escape, his term of imprisonment for such offense does not commence to run until he has served out his consecutive terms.1 Imprisonment for nonpayment of cumulative fines. While there is authority to the contrary,2 where the judgment against one convicted of two or more offenses consists of a fine for each offense, and defendant may be imprisoned as a means of enforcing the payment thereof, in the absence of a statute to the contrary, in order to have the terms of imprisonment for the nonpayment of each fine operate consecutively, it is not necessary that the sentence contain a direction to that effect.3 [§ 3238] (2) Where One or More Sentences Become Shortened or Inoperative. Where accused is sentenced to imprisonment for successive terms, and the first sentence is reversed, or is shortened by a pardon, the second term begins to run from the time of the reversal of the first, or from the pardon of the convict. Likewise where a defendant was sentenced at the same time to three successive terms of imprisonment on different counts of an indictment, and the second or middle term was declared void, it was held that defendant was not entitled to 240, 1 NW 525. 99. In re Dolan, 101 Mass. 219. 1. Ex p. Irwin, 88 Cal. 169, 25 P 1118. 2. Peed v. Brewster, 168 Ind. 51, 79 NE 1039. 3. Ex p. Brady, 70 Ark. 376, 68 SW 34. 4. U. S.-Blitz v. U. S., 153 U. S. 308, 14 SCt 924, 38 L. ed. 725. D. C.-Davis v. U. S., 37 App. 126. Mass.-Kite v. Com., 11 Metc. 581 (a leading case). Mo.-Ex p. Jackson, 96 Mo. 116, 8 SW 800. Pa.-Brown v. Com., 4 Rawle 259, 26 AmD 130. See Mills v. Com., 13 Pa. 631 (holding that, where one term of imprisonment is directed to commence at the termination of another, and the judgment on which the earlier term was based is reversed, the court may direct that the sentence be computed from another date). Eng. Gregory v. Reg., 15 Q. B. 957, 69 ECL 957, 117 Reprint 719. 5. U. S. v. Carpenter, 151 Fed. 214, 81 CCA 194, 9 LRANS 1043, 10 Ann Cas 509. 6. U. S. v. Carpenter, 151 Fed. 214, 81 CCA 194, 9 LRANS 1043, 10 Ann Cas 509. 7. Ex p. Roberts, 9 Nev. 44, 16 AmR 1; Ex p. Jordan, 5 OhS&CP 397, Oh. Prob. 9. 8. Ex p. Roberts, 9 Nev. 44, 16 AmR 1. 9. Ex p. Roberts, 9 Nev. 44, 16 AmR 1; Ex p. Jordan, 5 OhS&CP 397, Oh. Prob. 9. 10. Com. v. Martin, 2 Pa. Dist. 330; Com. v. Stanley, 12 Pa. Co. 543. 11. Yeary v. State, (Tex. Cr.) 66 SW 1106; McKinney v. State, 43 Tex. Cr. 387, 66 SW 769. 12. Migotti v. Colvill, 4 C. P. D. 233. See State v. Labore, 81 Kan. 202, 105 P 47 (holding that a sentence to confinement in jail for three months from February 27 expires May 27, and so does not exceed the maximum of ninety days, authorized by statute). 13. Necessity and effect of designating place of imprisonment in sentence see supra § 3081. 14. 1 Chitty Cr. L. p 800. 5 his discharge at the expiration of the first term, but in such case the third term would commence on the expiration of the first. On the other hand, where the first of two successive terms of imprisonment was declared void, it was held that the prisoner was entitled to an immediate discharge,' for the reason that the second sentence either has been served, or is void for uncertainty." [§ 3239] f. Meaning of "Month" When Used to Measure Term of Imprisonment. In some jurisdictions it has been held that the word "month," employed without explanation to measure time in a sentence to imprisonment,, means a lunar month of twenty-eight days.10 But in other jurisdictions it has been held that a statute fixing a month as the minimum punishment for an offense means a month of thirty days. A person sentenced to imprisonment for the space of one calendar month is entitled to be discharged on the day in the succeeding month immediately preceding the day numerically corresponding to that from which his sentence takes effect. If there is no such numerically corresponding day, the term will end on the last day of such succeeding month.12 [§ 3240] 2. Place of Imprisonment 13-a. In General. In England at common law the court of king's bench could commit the convict to any legal jail within the kingdom.14 In the United States the place to which a convict may be committed to serve out a term of imprisonment generally is regulated by statute.15 If the statute gives the court a discretion to choose between punishment by impris 15. See statutory provisions; and: U. S.-Mitchell v. U. S., 196 Fed. 874, 116 CCA 436. Ala.-Washington v. State, 63 Ala. 189; Steele v. State, 61 Ala. 213; De Bardelaren v. State, 50 Ala. 179; Ex p. Gunter, (A.) 69 S 442; Minto v. State, 9 Ala. A. 95, 64 S 369 [on reconsideration rev in part 8 Ala. A. 306, 62 S 376, and certiorari den 187 Ala. 671, 65 S 516]; Descrippo v. State, 8 Ála. A. 85, 62 S 1004; London v. State, (A.) 61 S 611; Robinson v. State, 6 Ala. A. 13, 60 S 558. Cal. Ex p. Hornef, 154 Cal. 355, 97 P 891; Ex p. Williams, 87 Cal. 78, 24 P 602, 25 P 248; Peo. v. Brooks, 65 Cal. 300, 4 P 11; Ex p. Flood, 64 Cal. 251, 30 P 437; In re Johnson, 6 Cal. A. 734, 93 P 199. Colo. In re Pratt, 19 Colo. 138, 34 P 680. D. C.-U. S. v. Marshall, 17 D. C. 34. Fla.-Irvin v. State, 52 Fla. 51, 41 S 785, 10 AnnCas 1003. Ill. Peo. v. Murphy, 257 Ill. 564, 100 NE 980; Henderson v. Peo., 165 Ill. 607, 46 NE 711 (holding that the word "penitentiary" is used interchangeably with state prison); Thomas v. Peo., 113 Ill. 531; Peo. v. Conboy, 178 Ill. A. 90. Kan.-State v. Kornstett, 62 Kan. 221, 61 P 805. Md.-Bond v. State, 78 Md. 523, 28 A 407. Mass.-Moulton v. Com., 215 Mass. 525, 102 NE 689; Lizotte v. Dloska, 200 Mass. 327, 86 NE 774; Lane v. Com., 161 Mass. 120, 36 NE 755; Stevens v. Com., 4 Metc. 360; Shepherd v. Com., 2 Metc. 419. Mich. In re Allen, 139 Mich. 712, 103 NW 209; In re Cox, 129 Mich. 635, 89 NW 440; Peo. v. Smith, 107 Mich. 584, 65 NW 561; In re Silverthorn, 73 Mich. 644, 41 NW 834; Peo. v. Gobles, 67 Mich. 475, 35 NW 91; Wesley v. Peo., 37 Mich. 384; Dorsey v. Peo., 37 Mich. 382; Elliott v. Peo., 13 Mich. 365. Nev.-Ex p. Tani, 29 Nev. 385, 91 P 137, 13 LRANS 518. N. Y.-Peo. v. State Reformatory for Women, 176 N. Y. 465, 68 NE 884 [aff 80 App. Div. 448, 80 NYS 872]; Peo. v. Penitentiary, 154 App. Div. 473, 139 NYS 212 [rev 75 Misc. 77, 132 NYS 577]; Peo. v. Foster, 132 App. Div. 116, 116 NYS 530; Peo. v. Champlin, 120 App. Div. 509, 105 NYS 349; Peo. v. Women's House of Refuge, 22 App. Div. 254, 47 NYS 767; Peo. v. Sage, 13 App. Div. 135, 43 NYS 372, 12 N. Y. Cr. 200 [rev 17 Misc. 712, 41 NYS 531, 11 N. Y. Cr. 333]; Peo. v. Liscomb, 3 Hun 760, 6 Thomps. & C. 258 [rev on other grounds 60 N. Y. 559, 19 AmR 2111; Peo. v. Craig, 60 Misc. 529, 112 NYS 781 [aff 129 App. Div. 851, 114 NYS 833 (rev on other grounds 195 N. Y. 190, 88 NE 38)]; Matter of Jacobs, 57 Misc. 655, 109 NYS 1068; Matter of Hallenbeck, 65 HowPr 401; Peo. v. Coffee, 62 HowPr 415; Matter of Wacher, 62 HowPr 352; Matter of Cavanagh, 10 HowPr 27, 1 Park. Cr. 588 [rev on other grounds 2 Abb. Pr. 84, 2 Park. Cr. 650]; Dempsey v. Peo., 5 Park. Cr. 85. N. C.-State v. Norwood, 93 N. C. 578; State v. McNeill, 75 N. C. 15. Oh.-State v. Wirick, 81 Oh. St. 343, 90 NE 937; Lemmon v. State, 77 Oh. St. 427, 83 NE 608; Kimbleaweez v. State, 51 Oh. St. 228, 36 NE 1072. Pa.-Com. v. Francies, 250 Pa. 350, 95 A 798; Com. v. Zelt, 138 Pa. 615, 21 A 7, 11 LRA 602; Reddill's Case, 1 Whart. 445; Barlow v. Com., 3 Binn. 1; Com. v. Francies. 58 Pa. Super. 269; Com. v. Lewis, 29 Pa. Super. 282; Com. v. Fetterman, 26 Pa. Super. 569; Com. v. Barge, 11 Pa. Super. 164. R. I.-Dawley v. Wilcox, 25 R. I. 297, 55 A 753. S. C.-State v. Boyd, 35 S. C. 269, 14 SE 620; State v. Welsh, 29 S. C. 4, 6 SE 894; State v. Turner, 18 S. C. 103. Tex.-Ex p. Wood, 36 Tex. Cr. 7, 34 SW 965; Ex p. Creel, 29 Tex. A. 439, 16 SW 256. Wash.-Pellissier V. Reed, 75 Wash. 201, 134 813. Wis.-Davies v. State, 72 Wis. 54, 38 NW 722. Man.-Rex v. McColl, 21 Man. 552, 19 CanCrCas 59. N. S.-Rex v. White, 34 N. S. 436, [a] In New Jersey (1) jails and workhouses are by statute treated as onment in the penitentiary or the county jail a sentence to the penitentiary is proper.16 Under a statute authorizing imprisonment for the nonpayment of a fine, if the primary punishment includes a term of imprisonment in the state prison, the convict may be required to serve out his fine in the same institution and need not be transferred to a county jail for this purpose,17 but in other cases imprisonment for the nonpayment of fines must be in the county jail.18 Statutes prescribing imprisonment without specifying place. Generally, when a statute prescribes the punishment of imprisonment without specifying the place thereof, it implies imprisonment in the common jail or prison of the county,19 and, if there is no jail in the county, it is the duty of the sheriff to see that the prisoner is confined in the nearest sufficient jail.20 But a statute which provides that a crime shall be a felony, punishable by imprisonment, by implication will be held to mean imprisonment in the state prison,21 particularly where the constitution provides that a felony shall mean a crime punishable by death or by imprisonment in the state prison.22 [ 3241] b. Outside of County. Under some statutes the court may sentence offenders to be imprisoned in a jail of another county within the entirely distinct in their origin, object, and government. The authority which a justice of the peace has to commit to the workhouse will not authorize him to commit to the county jail. State v. Ellis, 26 N. J. L. 219. (2) Punishment by imprisonment in the county jail is illegal and void, where the statute provides as punishment for disorderly persons incarceration in the workhouse. Fairbanks v. Sheridan, 43 N. J. L. 484. 16. State v. Welch, 29 S. C. 4, 6 SE 894. 17. Peo. v. Sage, 13 App. Div. 135, 43 NYS 372, 12 N. Y. Cr. 200. 18. Enson v. State, 58 Fla. 37, 50 S 948, 138 AmSR 92, 18 AnnCas 940; Douglass v. State, 53 Fla. 27, 43 S 424; Thompson v. State, 52 Fla. 113, .41 S 899; Dean v. State, 41 Fla. 291, 26 S 638, 79 AmSR 186; Eggart v. State, 40 Fla. 527, 25 S 144; Bueno v. State, 40 Fla. 160, 23 S 862. See Ex p. Tani, 29 Nev. 385, 91 P 137, 13 LRANS 518 (where the sentence was erroneous only in that it directed imprisonment in the state prison for nonpayment of a fine instead of in the county jail, and on habeas corpus proceedings it was held that such direction as to the place of imprisonment might be rejected as surplusage, and did not vitiate the entire sentence). 19. Alaska.-U. S. v. Powers, 1 Alaska 180. Ariz.-Gherna v. State, 16 Ariz. 344, 146 P 494, AnnCas1916D 94. Colo.-Brooks v. Peo., 14 Colo. 413, 24 P 553. Fla.-Walden v. State, 50 Fla. 151, 39 S 151. III. Dyer v. Peo., 84 Ill. 624; Keedy v. Peo., 84 Ill. 569; Mullinix v. Peo., 76 Ill. 211. N. C.-State v. Norwood, 93 N. C. 578; State v. McNeill, 75 N. C. 15. Pa.-Com. v. Francies, 250 Pa. 350, 352, 95 A 798; Com. v. Fetterman, 26 Pa. Super. 569. S. C.-State v. Hord. 8 S. C. 84. See also Horner v. State, 1 Or. 267 (holding that since the statute was silent as to the place of punishment, and the crime was punishable only by a short term, the court would construe it to be a misdemeanor, punishable by imprisonment in the county jail, rather than as a felony, punishable by imprisonment in the state prison). state.23 Under a statute authorizing a county not having a workhouse to make arrangements with another county for the use of its workhouse, it was held that a prisoner could not be committed to such workhouse unless the terms of the sentence so provided.24 [§ 3242] c. Imprisonment of Federal Offenders. Under the federal statute,25 a federal court has no jurisdiction to sentence a convict to imprisonment in a state penitentiary except where the imprisonment is for more than one year or at hard labor.26 But when imprisonment at hard labor is ordered, it may be executed in such a penitentiary, although it is for a period less than one year.2 While the use of state penitentiaries as places for confinement of federal prisoners usually is authorized by state legislation,28 a federal convict lawfully may be imprisoned in the jail or penitentiary of a state, although the state has not expressly consented to such imprisonment. As long as a state permits such a convict to remain in its jail or penitentiary as a prisoner of the United States, and does not object to his detention by its officers, he is rightfully detained under a sentence lawfully passed.29 Where there is no suitable prison available in the state where the prisoner is convicted,30 or where the court merely sentences a prisoner to imprisoncasions and sentenced to terms exceeding one year, was authorized to direct that his earlier sentence should be executed at the Erie county penitentiary, and his later at Sing Sing prison). Compare O'Brien v. M'Claughry, 209 Fed. 816, 126 CCA 540 (holding that the provision of the act of March 3, 1891 [26 U. S. St. at L. 839 c 529], authorizing the establishment of three government prisons "for the confinement of all persons convicted of any crime whose term of imprisonment is one year or more at hard labor,' so far as it limited the use of such prisons to cases where the sentence included hard labor, was repealed as to the prison at Leavenworth, Kan., by the Act of March 2, 1895 [28 U. S. St. at L. 957 c 189]. directing the transfer of the military prison at Ft. Leavenworth to the department of justice to be used for the confinement of prisoners convicted in the United States courts and sentenced to imprisonment in a penitentiary). [a] "'Imprisonment' or 'simple imprisonment' means confinement in the county jail; imprisonment at labor, by separate or solitary confinement,' means imprisonment in the penitentiary or in a suitable county prison." Com. v. Francies, supra. 20. Dyer v. Peo., 84 111. 624; Keedy v. Peo., 84 Ill. 569; Mullinix v. Peo., 76 Ill. 211. 21. In re Pratt, 19 Colo. 138, 34 P 680. 22. In re Pratt, 19 Colo. 138, 34 P 680. 23. Brown v. Peo., 75 N. Y. 437; Com. v. Sarver, 44 Pa. Super. 441; Dawley v. Wilcox, 25 R. I. 297, 55 A 753. 1. 24. Young v. State, 31 Oh. Cir. Ct. 25. Rev. St. (1878) § 5541. 26. In re Bonner, 151 U. S. 242, 14 SCt 323, 38 L. ed. 149; In re Mills, 135 U. S. 263, 10 SCt 762, 34 L. ed. 107; Ex p. Karstendick, 93 U. S. 396, 23 L. ed. 889; Francis v. U. S.. 152 Fed. 155, 81 CCA 407; Haynes v. U. S., 101 Fed. 817, 42 CCA 34; Ex p. Friday, 43 Fed. 916; U. S. v. Cobb, 43 Fed. 570; In re De Puy, 7 F. Cas. No. 3,814, 3 Ben. 307; Fields v. U. S., 27 App. (D. C.) 433 [certiorari den 205 U. S. 292, 27 SCt 543, 51 L. ed. 807]. See Thompson v. U. S., 204 Fed. 973, 123 CCA 295 [aff 202 Fed. 346] (holding that, where accused was convicted on two counts of violating the White Slave Traffic Act, and was sentenced to a year's impris-ernor to contract with the authorionment on the first count and to six months' on the second, to run successively, the court properly ordered the sentence to be served in a state penitentiary, under Rev. St. § 5541, authorizing such imprisonment in cases of sentence for a term longer than one year); In re Walters, 128 Fed. 791 (holding that, under Rev. St. § 5541, providing that, in every case where any person convicted of an offense against the United States is sentenced to imprisonment for a period longer than a year, the court by which the sentence is passed may order the same to be executed in any state jail or penitentiary within the district in which the court is held, the use of which is allowed by the state legislature for that purpose, a court of the United States sitting in New York, in which court the relator was convicted on two different oc 27. Ex p. Friday, 43 Fed. 916. 28. Ex p. Brooks, 29 Fed. 83. 29. Ex p. Karstendick, 93 U. S. 396, 23 L. ed. 889; Ex p. Geary, 10 F. Cas. No. 5,293, 2 Biss. 485. See In re Terrill, 66 Kan. 315, 71 P 589 (where the legislature of Oklahoma territory, acting under the power given by the act of June 16, 1880 [21 U. S. St. at L. 277], authorized, by Rev. St. §§ 3680, 3686, 3687, the govties of another state for the care of convicts, and thereafter the governor contracted with the warden and directors of the Kansas penitentiary for the care and custody of the convicts of the territory, and the contract was recognized by the officers of the state, including the governor in his message to the legislature, and payments were received by the state from the territory for the maintenance of its prisoners, and it was held that such official conduct and declarations were an acquiescence by the state of Kansas in the validity of the contract, although the officers of the penitentiary were not authorized by legislative act to enter into the agreement, so that it afforded no ground for a discharge of a prisoner so held). 30. Ex p. Karstendick, 93 U. S., 396, 23 L. ed. 889. ment without designating the place,31 under express statutory authority the attorney general may designate the penitentiary where such prisoner shall be confined. In the absence of a statutory provision designating a particular place where accused shall be imprisoned a federal district court may designate any place, either jail or penitentiary, within its jurisdiction.32 33 Imprisonment for nonpayment of fines. A statute authorizing the imprisonment of federal prisoners for the nonpayment of fines does not, in the absence of express provision, confer authority to imprison in the state prison.3 But where defendant is sentenced to a term in the penitentiary and also to pay a fine, if, at the expiration of the period of imprisonment the fine is not paid, he may be detained in the same penitentiary for the time required by statute before he can take the insolvent oath.34 [§ 3243] d. Imprisonment of Territorial Offenders. An act of congress 35 provides that legislative assemblies of the several territories of the United States may contract for the care of its conviets in any other territory or state, and a convict of a territory confined in a state prison pursuant to an arrangement with the officials of such state is legally detained therein.36 A territorial court is a "court of the United States," within a statute which provides that persons convicted by any "court of the United States' may, where there is no prison in the territory, be confined in some suitable prison. in a convenient state or territory to be designated by the secretary of the interior.37 But where congress has provided for imprisonment in penitentiaries erected by its authority in the territories, persons convicted in the territorial courts must be sent to such penitentiaries.38 [§ 3244] e. Reformatory.30 In many jurisdictions there are statutes providing for the imprison ers. 40 41 ment of minors or persons under a certain age in institutions where special facilities are afforded for the education and reformation of youthful offendThese institutions are usually designated reformatories, reform schools, or houses of correction.42 Where the legislature fails to provide a reformatory in accordance with a constitutional provision for such punishment of convicts under a certain age the court may sentence such convicts to the penitentiary.43 One who has served a term in a state reformatory may be resentenced to it on a subsequent conviction where he is still under age, although the statute provides that no one shall be sent to a reformatory who has been sentenced to a penitentiary in any state or country.44 [§ 3245] f. On Change of Venue. Where the venue of the trial has been changed, and accused is convicted, the court in which he is tried may, in the absence of an express statute, sentence him to imprisonment in either the jail of the county in which the crime was committed or in that of the county where he was tried.45 [§ 3246] g. Change in Place of Imprisonment.1 46 Where, after defendant's imprisonment has begun, the location of the state prison is changed, he may be transferred to a newly located state prison by an order of the court.47 Likewise, where a federal convict is sentenced to a certain statė jail, his imprisonment in the jail at another place to which it has been removed by the authority of the state legislature since his sentence is legal;48 and persons subsequently convicted may be sentenced to the newly located prison.49 Statutory provisions. Under the federal statutes the place of imprisonment of a federal prisoner may, in certain contingencies, be changed, at the instance of the attorney general, to a prison different from that designated in the sentence.50 But when the statutory contingencies have not been met, the sentence of the court directing imprisonment in 31. Myers v. Morgan, 224 Fed. 413, 36. In re Terrill, 66 Kan. 315, 71 139 CCA 641. P 589. 32. Ex p. Geary, 10 F. Cas. No. 5,293, 2 Biss. 485. [a] In Porto Rico a judge of the United States district court may sentence a prisoner to any court or penitentiary on the island regardless of the degree of crime or the length of the imprisonment. U. S. v. Garofolo, 7 Porto Rico Fed. 293. 37. In re Osterhaus, 18 F. Cas. No. 38. Terr. v. Nelson, 2 Wyo. 346. 33. In re Greenwald, 77 Fed. 590. See Haddox v. Richardson, 168 Fed. 635, 639, 94 CCA 99 (where the court said: "The power of a court of criminal jurisdiction to order a convicted person into custody as a means of compelling the payment of a fine imposed by the court as punishment is inherent, otherwise the courts would be impotent to enforce such punishment. It is true that in the ordinary administration of the criminal laws, both of the United States and of the several states, no person sentenced to pay a fine, or fine and costs without imprisonment, would in default of payment be imprisoned in a penitentiary. In the federal courts, when a fine is imposed or a convicted person adjudged to pay cost or both 40. Ill.-Peo. v. Kielczewski, 269 fine and costs without imprisonment, Ill. 293, 109 NE 981: Marx v. Peo., it is the usual and orderly course for 204 Ill. 248, 68 NE 436; Cunningham the court to commit the person re- v. Peo., 195 Ill. 550, 63 NE 517; Henquired to pay the fine, or fine and derson v. Peo., 165 Ill. 607, 46 NE costs, to the custody of the marshal 711; Peo. v. Illinois State Reformauntil the same is paid, and the mar- tory, 148 Ill. 413, 36 NE 76, 23 LRA shal retains the custody by placing 139. the person in the prison or jail which is being used in connection with the court, there to remain until the fine, or the fine and costs. or both as the case may be, are paid, or until the person seeks advantage of the sections of the law to which we have above referred"). 34. Haddox v. Richardson, 168 Fed. 635, 94 CCA 99. 35. Act June 16, 1880 (21 U. S. St. at L. 277 c 235). Ind.-Bloom v. State, 155 Ind. 292, 58 NE 81. Kan.-State v. Hewes, 60 Kan. 765, 57 P 959. N. Y.-Peo. v. State Reformatory Pa. In re Pennsylvania Industrial Tex.-Ex p. Wood, 36 Tex. Cr. 7, 34 SW 965; Ex p. Creel, 29 Tex. A. 439, 16 SW 256. 41. Ex p. Nichols, 110 Cal. 651, 43 P 9; Ex p. Liddell, 93 Cal. 633, 29 P 251; State v. Hewes, 60 Kan. 765, 57 P 959. 42. Ex p. Williams, 87 Cal., 78, 24 P 602, 25 P 248. [a] In Michigan the governor may commute the sentence of a female imprisoned in the state prison to imprisonment in the house of correction, and in so doing need not shorten the term of imprisonment. Rich v. Chamberlain, 107 Mich. 381, 65 NW 235, 104 Mich. 436, 62 NW 584, 27 LRA 573. 43. Willard v. Com., 96 Ky. 148, 28 SW 151. 16 KyL 343. 44. Henderson V. Peo., 165 Ill. 607, 46 NE 711. 45. Davies v. State, 72 Wis. 54, 38 NW 722. 46. Transfer of prisoners generally see Prisons [32 Cyc 330]. 47. Reddill's Case, 1 Whart. (Pa.) 445; Pember's Case, 1 Whart. (Pa.) 439; Kingen v. Kelley, 3 Wyo. 566, 28 P 36, 15 LRA 177. See also Reg. v. Peterson, 6 Man, 311 (holding that one who escapes may be confined for the unexpired portion of his sentence even though the prison where he was originally confined has been supplanted by a new building). 48. In re Hartwell, 11 F. Cas. No. 6,173, 1 Lowell 536. 49. Ex p. Brooks, 29 Fed. 83. 50. U. S. v. Lane, 221 Fed. 299; U. S. v. Greenwald, 64 Fed. 6 (holding that the removal of a federal prisoner on account of ill health or a certain place should not be changed without notice to the prisoner, ,51 or unless he consents or has been heard upon the matter.52 54 66 53 [§ 3247] 3. Term Not to Expire during Winter. In some states it is enacted by statute that a term of imprisonment shall be so limited that it shall not expire during the winter months.5 It has been held that such a statute is directory merely and that a sentence failing to observe its provisions is not void, especially where the statute merely provides that the expiration of the term must occur during the summer whenever practicable.' '55 A failure to observe the statute is at most only ground for a resentence.56 A sentence is sufficient if it will not expire in winter with allowance for good behavior.57 Effect of appeal. A defendant who by appeals has so changed the date of the expiration of his sentence that it terminates in a winter month, contrary to the statute, cannot complain if the original sentence terminated during the months designated by statute.58 [§ 3248] 4. Discharge under Excessive Sentence.59 As a general rule, a prisoner erroneously sentenced in excess of the power of the court to impose punishment is not entitled to an absolute discharge, unless he has already served the maximum term for which he could legally be imprisoned.60 he is sentenced entitles the prisoner to be discharged from the custody of such officer and into that provided by the sentence, but not to an absolute discharge, unless the authorities have failed to provide a place of imprisonment in accordance with the terms of the sentence.64 However, it has been held that mere delay in the infliction of the punishment assessed is not a sufficient reason for releasing one convicted of a crime from the consequences of a judgment against him,65 unless the delay has been so great that society could derive no good from its enforcement;66 but when such delay has occurred without the fault of defendant, although with his consent, there should be no hesitancy in refusing to enforce the judgment."7 [§ 3250] E. Execution of Sentence of Deaths -1. In General. When the execution of the death sentence is not controlled by statute and no warrant of execution is issued, the sheriff has discretion to decide the time and place, subject to the requirement that the execution must take place in the county wherein defendant was convicted." Likewise, where a statute regulating the time, place, and manner of executing the death sentence is repealed by implication, it does not affect the penalty of death as prescribed by the code but merely leaves such details of the execution to be prescribed by the court as was done prior to the enactment of statutes fixing such details." However, the time, the place, and the manner of executing the death penalty is regulated almost wholly by statutes in the various states.72 A statute changing the time and place for the execution of the death penalty does not apply to conviction for offenses committed before the passage of the act.78 The provisions of the federal statutes abolishing capital punishment has [§ 3249] 5. Delay in Pronouncing or Enforcing Sentence.61 If the court improperly delays sentencing accused without his fault, and in the meantime he remains in imprisonment, he is entitled to his discharge where his imprisonment is equivalent to the term he would have received if he had been promptly sentenced.62 An unreasonable delay after sentence, on the part of the officer having a convict in custody, in delivering him at the prison to which because of improper treatment where | account. Peo. v. Osborne, 96 Misc. he is confined can be authorized only 497, 160 NYS 759. by the attorney-general). 51. U. S. v. Lane, 221 Fed. 299. 52. U. S. V. Lane, 221 Fed. 299. 53. Miller v. Finkle, 1 Park Cr. (N. Y.) 374. [a] In Pennsylvania this statute applies to prisoners sentenced to the penitentiary and not to imprisonment in a county prison. Com. v. Peach, 170 Pa. 173, 32 A 582. 54. Mims v. State, 26 Minn. 494, 5 NW 369; Miller v. Finkle, 1 Park. Cr. (N. Y.) 374. 55. Mims v. State, 26 Minn. 494, 5 NW 369. 56. Com. v. Peach, 170 Pa. 173, 32 A 582. 57. State v. Whitmarsh, 26 S. D. 426, 128 NW 580. [a] In New York, under Pen. Code § 2193, providing that, when a convict is to be sentenced in a state prison, the court must limit the term of the sentence, having reference to the probability of the convict earning a reduction of his term for good behavior, and assuming that such reduction will be earned, so that the sentence will expire during the period from April 1st to October 1st, and forbidding the officers of every prison from taking into custody any convict sentenced in violation of the section, and requiring them to return any convict so illegally sentenced to the sheriff for resentence in conformity with the section, and L. (1916) c 358, providing for compensation for a period not exceeding 2 days for each 30 day period, only the commutation which may be earned by good behavior is to be taken into account in fixing the termination of a sentence to a state prison, and the compensation which may be earned under the new law is not to be taken into 58. Peo. v. Johnson, 114 App. Div. 876, 100 NYS 256, 19 N. Y. Cr. 427, 20 N. Y. Cr. 373. 59. Cross references: Discharge under writ of habeas corpus because of excessive sentence generally see Habeas Corpus [21 Cyc 3061. Validity of sentence in excess of that authorized by law see supra 3093. 60. U. S.-Stevens v. McClaughry, 207 Fed. 18, 125 CCA 102, 5 LRANS 390; Munson v. McClaughry, 198 Fed. 72, 117 CCA 180, 42 LRANS 302. Cal.-Ex p. Morton, 132 Cal. 346, 64 P 469. Kan-In re Paschal, 56 Kan. 123, 42 P 373. Mich.-Peo. v. Parkhurst, 50 Mich. 389, 15 NW 522. Pa. Com. v. McKenty, 61 Pa. Super. 446. See also Rex v. Williams, 21 Ont. L. 467, 16 OntWR 364 (where defendant was sentenced for a time longer than that authorized by statute and was discharged because the court thought he had been imprisoned long enough for the particular offense). 61. Cross references: Indefinite suspension of pronouncing sentence see supra § 3041 et seq. Time during which convict is at liberty see supra § 3233 et seq. 62. State v. Snyder, 98 Mo. 555, 12 SW 369. 63. White v. State, 134 Ala. 197, 32 S 320; O'Neill v. State, 134 Ala. 189, 32 S 667. 64. Ex p. Goucher, 103 Ala. 305, 15 S 601; Ex p. Stewart, 98 Ala. 66, 13 S 660; Ex p. Crews, 78 Ala. 457; Kirby v. State, 62 Ala. 51. 65. Ex p. Bugg, 163 Mo. A. 44, 145 SW 831. 66. Ex p. Bugg, 163 Mo. A. 44, 145 SW 831. 67. Ex p. Bugg, 163 Mo. A. 44, 145 SW 831. See also Rex v. Fitzpatrick, 25 Man. 627 (holding that, where after conviction and sentence and the issuance of a commitment, the court directs that the latter should not be executed for a few days to enable defendant to leave the city, and defendant actually leaves the city, he cannot, upon returning after the expiration of the term to which he was sentenced, be arrested on a warrant based on the former conviction and should be discharged on habeas corpus). 68. Cross references: Necessity and sufficienty of warrant of execution see supra § 3129 et seq. Requisites and sufficiency of sentence to capital punishment see supra § 3080. 69. 1 Chitty Cr. L. pp 782, 783. 70. 1 Chitty Cr. L. p 783. 71. Keith v. State, 157 Ind. 376, 61 NE 716. 72. U. S.-Holden v. Minnesota, 137 U. S. 483, 11 SCt 143, 34 L. ed. 734; In re Kemmler, 136 U. S. 436, 10 SCt 930, 34 L. ed. 519; Wilkerson v. Utah, 99 U. S. 130, 25 L. ed. 345. Cal.-Peo. v. Vincent, 95 Cal. 425, 30 P 581; Peo. v. McNulty, 93 Cal. 427, 26 P 597, 29 P 61. Mass.-Storti's Case, 178 Mass. 549, 60 NE 210, 52 LRA 520. Minn.-State v. Holong, 38 Minn. 368, 37 NW 587. N. Y.-Peo. v. Kemmler, 119 N. Y. 580, 24 NE 9; Peo. v. Durston, 119 N. Y. 569, 24 NE 6, 7 N. Y. Cr. 457, 16 AmSR 859, 7 LRA 715; Ratzky v. Peo., 29 N. Y. 124; Lowenberg v. Peo., 27 N. Y. 336, 26 HowPr 202. 73. Peo. v. Vincent, 95 Cal. 425, 30 P 581 [app dism 149 U. S. 648, 13 SCt 960, 37 L. ed. 884]. 76 77 78 no application in proceedings in the state court.74 [§ 3252] 3. Place of Execution. In the absence of statutory regulation, the place of execution must be the county in which accused is tried, and the rule is not changed by the fact that there has been a change of venue from the county where the crime was committed,80 or that accused has been confined for safekeeping in a different county.81 [§ 3253] 4. Mode of Execution. The usual mode of inflicting capital punishment at common law was by hanging,82 and in the absence of statute it is usually the mode of punishment prescribed in cases of conviction for capital offenses.83 In the case of treason and certain other very atrocious crimes other means of execution, such as beheading, burning, or drawing and quartering, were at one time in use.84 Even the king could not legally change the sentence so as to increase the punishment;85 yet, as he might pardon and remit the whole punishment, so he might in mitigation, when the punishment was for high treason, remit the cruel and barbarous part of it.86 However, hanging was not the only mode of execution; and in the absence of any controlling statute, it would seem that other modes may be resorted to,88 as long as the prohibition against cruel and unusual punishments is not violated.89 91 ute.90 Under a statute which does not abrogate the common-law mode of execution of the death sentence, hanging is still a legal method of execution." Execution by shooting may be ordered under a statute making the mode of execution discretionary with the court.92 A statute changing the method of inflicting the death penalty applies to offenses committed prior to the enactment when the conviction occurs subsequent thereto, and such a statute is not unconstitutional as applied to one who committed a crime punishable by death prior to the enactment of the law.94 93 [§ 3254] 5. By What Officer Executed. The execution of the death sentence must be performed by the officer on whom the duty is imposed by law.95 This generally is the officer in whose custody the prisoner is at the time when sentence is pronounced against him, commonly the sheriff of the assize or county in which the trial is held, or his deputy. The sheriff of the county in which the trial is held is the proper officer to execute the sentence, and not the sheriff of a county whence the cause was removed.98 97 96 By unauthorized person. If any unauthorized individual takes it upon himself to execute the death sentence, he will be guilty of murder, for the reason that the person of the party convicted is as much under the protection of the law as that of any other subject."9 Statutory provisions. The statutes as a general rule now direct what person is to execute the death penalty.1 [§ 3255] F. Restitution and Indemnity. At common law there could be no restitution of stolen property on an indictment, the only remedy being an appeal of larceny or robbery. By an early statute, however, a writ of restitution was provided for, to be awarded by the justices on a conviction of robbery or larceny.3 This writ was to be awarded as soon as the conviction was had, but as a matter of practice it was rarely if every employed, the custom being for the judge summarily to order the goods. to be brought into court and restored to the owner.5 Aside from the goods belonging to the prosecutor in the larceny, the justice in England had no power, either at common law or by statute, to dispose of chattels in the possession of a convicted thief." In some jurisdictions there are statutes providing that upon the conviction of the offender property which (N. Y.) 414]; 4 Blackstone Comm. p 95. 1 Chitty Cr. L. p 784; 2 Haw404; 1 Chitty Cr. L. p 787; 2 Hale P. kins P. C. c 51 § 6. C. p 411. Statutory provisions. In the United States the mode of execution generally is regulated by stat74. Holmes v. State, 6 Okl. Cr. 541, 119 P 430, 120 P 300. 75. Effect of lapse of time set for execution see supra § 3132. 76. Wallace v. Peo., 159 Ill. 446, 42 NE 771; Koerner v. State, 96 Ind. 243. [a] For example (1) if the statute requires that punishment of death shall be inflicted after a certain number of days have elapsed after conviction, the time cannot be shortened even by the consent of the prisoner. Koerner v. State, 96 Ind. 243. (2) If the statute requires the day of execution to be not more than twenty-five days from the time sentence is pronounced, it is error to fix it at more than that time. Wallace V. Peo., 159 Ill. 446, 42 NE 771. 77. Peo. v. Durrant, 119 Cal. 54, 50 P 1070; Wallace v. Peo., 159 Ill. 446, 42 NE 771; White v. Peo., 81 Ill. 333. 78. Peo. v. Durrant, 119 Cal. 201, 51 P 185. 79. Peo. v. Ebanks, 120 Cal. 626, 52 P 1078. 80. Ex p. Fleming, 60 Miss. 910; State v. Twiggs, 60 N. C. 142. 96. 4 Blackstone Comm. p 403; 1 Chitty Cr. L. p 784; 2 Hale P. C. p 83. Calvin v. State, 23 Tex. 577: 84. Peo. v. Trezza, 128 N. Y. 529, 85. 2 Hawkins P. C. c 51 § 5. 377. 4 Blackstone Comm. pp 376, 88. Wilkerson v. Utah, 99 U. S. 89. See supra § 3195. Lowenberg v. Peo., 27 N. Y. 92. Wilkerson v. Utah, 99 U. S. 130, 25 L. ed. 345. 93. Shipp v. State, 130 Tenn. 491, 172 SW 317. 94. State v. Vaughn, 95 S. C. 455, 79 SE 312. 97. State v. Twiggs, 60 N. C. 142. 98. S'ate v. Twiggs, 60 N. C. 142. 99. 4 Blackstone Comm. p 178; 1 Chitty Cr. L. p 784; 1 East P. C. c 597; Foster 267, 268; 3 Coke Inst. 52; 1 Hale P. C. p 501. 1. Peo. v. Ebanks, 120 Cal. 626, 52 P 1078. 2. 4 Blackstone Comm. p 362; 1 Hale P. C. p 542. 3. 21 Hen. VIII c 11. 4. 1 Chitty Cr. L. p 820. 5. 4 Blackstone Comm. p 363; 1 Chitty Cr. L. p 820. [a] A later statute covering the same subject was 7 & 8 Geo. IV c 29 § 57. The court held, in construing this statute, that it had no power to order the restitution of a bank of England note which had been paid and canceled, intimating that the prosecutrix might have a civil action against the bank. Rex v. Stanton, 7 C. & P. 431, 32 ECL 692. 6. Reg. v. Pierce, Bell C. C. 235; Reg. v. London Corp., E. B. & E. 509, 96 ECL 509, 120 Reprint 599. |