Harrington v. Bader

22 Ohio C.C. Dec. 493

Opinion

GIFFEN, P. J.

On July 31, 1905. the plaintiff in error was sentenced to the workhouse of the city of Cincinnati to serve three successive sentences each of six months’ imprisonment and fine of $300 with costs for housebreaking. On August 1, 1905, he was delivered to the chief of police of the city of Cincinnati under the following order:

“State oe Ohio, Hamilton County, ss. Police Court of the City of Cincinnati.

“To the Superintendent of the Workhouse':

“Deliver to Paul M. Millikin, Chief of Police of the City of Cincinnati, the body of ¥m. Harrington, now in your custody, charged with housebreaking, committed July 31, 1905, for new trial.

“By order of court.

“Attest: Aug. Kirbert,

“(Seal.) Clerk of the‘Police Court,,

“By F. G. GooDr Deputy. ■

“Cincinnati, 8-1, 1905.”

Counsel assume that the effect of this order was an unconditional suspension of the sentences which amounted to a final discharge of the prisoner; but there is nothing upon the face of it to indicate that any suspension or modification of the sentences was intended.

The presumption is that the removal of the prisoner from the workhouse into the custody of the chief of police was by legal process, as contemplated by R. S. 5748 (Gen. Code 12184), and if not, the sentences continued in full force without loss of time by the prisoner.

It appears, however, from other evidence, not the best, that he was delivered to the chief of police for the purpose of being returned to the Ohio penitentiary, whence he had escaped. It is unnecessary to determine whether this delivery was authorized by law on demand of the warden of the penitentiary, because under the several commitments his time would not in any event expire till December 21, 1910.

The better practice no doubt would be to await the expiration of his term in the workhouse when the warden could, under R. S. 7404 (Gen. Code 2186), arrest and recommit him to the penitentiary.

The prisoner is not now, at least, entitled to a discharge, and the judgment of the common pleas court dismissing his petition and remanding him to the custody of the superintendent of the workhouse will be affirmed.

Smith and Swing, JJ., concur.