Ex parte Jordan

1 Goebel 9

• Court: Hamilton County Probate Court
• Decided: December 16, 1885
• Status: Published

Opinion

Goebel, J.

The prisoner, on the 27th day of December, 1884, was convicted in the Police Court of this city on a charge of having burglar’s tools in his possession, and was sentenced to the Work-house for twelve months and to pay afine of $100. On the same day, in the same court, he wás tried and convicted on the charge of carrying concealed weapons, and was sentenced to pay a fine of $200 and costs, and stand committed until the fine' and costs were paid. The last sentence was to take effect after the expiration of the previous sentence.

The prisoner now applies for a writ of habeas corpus, and asks to be discharged, for the reason that the law under which he was convicted and sentenced (namely, for having burglar’s tools in his possession), was declared unconstitutional in May 1885; ex parte Falk, 42 O. S. 638; that the time of sentence under the second charge began and took effect at that date, and that by reason thereof he has now worked out the fine and costs under the second sentence, he being relieved from serving the remainder of the first sentence by the act being declared unconstitutional; and that he is now illegally restrained of his liberty by the Superintendent of the Work-house.

The question that presents itself is, When did the sentence on the second charge take effect? I can not agree with the counsel for the prisoner that the second sentence took effect at the time the act was declared unconstitutional, namely, in May, 1885.

I am of the opinion that the act under which the prisoner was tried, convicted and sentenced for having burglars’ tools in his possession having been declared unconstitutional, affected the proceedings from the beginning.

An unconstitutional law is void, and is noi law. An offense created by it is not a crime. A conviction under it is not merely erroneous, but is illegal and absolutely void, and can not be a legal cause of imprisonment.

If there was no law, and no conviction could have been had under it, it must follow that the conviction and sentence were illegal and void on the 27th day of December, 1884. If that be true, it must follow that he was not serving his term on the first sentence at any time since there was no law, no trial, no sentence, no term to serve. The second sentence began, then, on the 27th day of December, 1884, if it began at all, and under the rules he has worked out his fine and costs under such sentence.

But were I mistaken. in this conclusion, I would further hold that the second sentence, which provides that the same shall take effect after the expiration of a previous sentence is void for uncertainty. The word “expiration,” used in the commitment, means not an expiration of a previous sentence as a matter of fact, but the expiration of a sentence as matter of law. As matter of law, there was no sentence. There never was a commencement of any such sentence, and necessarily there could not be any expiration of it.

Whether or not the prisoner ought to be taken to the police court and re-sentenced on the second charge, is not for me to determine. It is sufficient for me to say that under the commitments the prisoner is entitled to his discharge.