Ex Parte Oliver

1915 OK CR 54, 149 P. 117, 11 Okla. Crim. 536, 1915 Okla. Crim. App. LEXIS 56

• Court: Court of Criminal Appeals of Oklahoma
• Decided: June 8, 1915
• Docket: No. A-2432.
• Status: Published

Opinion

DOYLE, P. J.

The petitioner Bob Oliver, having been legally charged and being personally present in open court, on being arraigned entered a plea of guilty. On the 5th day of March, 1912, judgment was entered and he was sentenced to be confined in the county jail of Pottawatomie county for a period of six months and to pay a fine of five hundred dollars, and in default of the payment thereof to stand committed to the county jail for such additional period of time as would satisfy said fine. A commitment was issued, but the petitioner was not taken into custody by the sheriff and no return was ever made on said commitment. On the 24th day of March, 1915, another commitment was issued on the judgment, under which the petitioner was taken into custody by the sheriff.

The petitioner avers that at the time of entering judgment it was understood and orally agreed between the county judge, county attorney, and- sheriff that he should leave the county. That he did so leave, and did not return until the first day of September, 1914, and that he has since continuously resided in said county.

The contention on behalf of the petitioner is that the judgment and sentence has been fully satisfied by reason of said agreement; that he did not file a motion for a new trial or in arrest of judgment or give notice of appeal, and that no order was entered suspending the sentence; that therefore the sentence began to run and the period of imprisonment began in contemplation of law at the date the judgment was rendered and the first commitment issued, and for this reason the sentence can not now be enforced against him.

It has been held by numerous decisions in this court that the contention is not well founded. Ex parte Alexander, 5 Okla. Cr. 198; Ex parte McClure, 6 Okla. Cr. 241; Ex parte Eldridge, 3 Okla. Cr. 499, 106 Pac. 908, 27 L. R. A. (N. S.) 625, 139 Am. St. Rep. 967.

In the last case 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 instant case if the alleged 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 (art. 6, sec. 10, 159 Williams’) vested exclusively in the Governor, and such action on the part of these officials was wholly unauthorized, and without authority of law.

We are unable to discover any reason for allowing the petitioner to profit by the unlawful agreement which he, as a party, assented to.

The petitioner has been at liberty all the time. The only way of satisfying a judgment judicially is by fulfilling its requirements. This cannot be waived, as here claimed, by the officers of the court, whose duties with respect to its judgments are purely ministerial. The time of its execution was not of the essence of the judgment, unless the petitioner, by demanding that it be immediately carried out, made it such. It was his duty to surrender himself and submit to the penalty of the law, as well as that of the sheriff to inflict it; and, by taking advantage of the neglect of the latter, he cannot avoid the punishment which his wrongdoing will be assumed to have justly required. See Miller v. Evans (Iowa) 56 L. R. A. 101.

Counsel for the petitioner in their brief say “that if it were not for one slight difference in facts, the case of Ex parte Eley, 9 Okla. Cr. 76, 130 Pac. 821, would be exactly in point.” The “slight difference in facts” alluded to appears, when examined, to be very material. In the Eley case there was conviction, commitment, and imprisonment. After the sentence was partly exe-> cuted, the prisoner was told to go home. Pie 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 case at bar the petitioner, with the connivance of the court and its officers, left the state and remained out of the jurisdiction of the court, and there can be no question that his status before his' arrest on the commitment in question was that of an escaped convict, and for this reason the trial court was authorized to enforce its judgment by issuing said commitment.

It follows from the foregoing that the petitioner was rightly remanded to the custody of the sheriff to be dealt with as commanded in the judgment of the court. The writ of habeas corpus will, therefore, be denied.

FURMAN and ARMSTRONG, JJ., concur.