The opinion of the court was delivered by
Valentine, J.:
This is an action of habeas corpus, brought originally in this court by Joseph Hollon against Henry Hopkins. The defendant makes return to the writ, stating among other facts the following, to wit:
“The said Henry Hopkins is the warden of the penitentiary of the state of Kansas, and holds the said Joseph Hollon in his custody by virtue of a judgment rendered by the district court o'f Marion county, Kansas. Said judgment was rendered on September 25th, 1874, and by it Hollon was sentenced, on a conviction duly had September 19th, 1874, for perjury, to imprisonment in the penitentiary ‘for the period of three years from the 19th day of September, A. I). 1874.’ On the next day after said sentence, Hollon escaped from the custody of the officer then having him in charge, and became a fugitive from justice. On May 28th, 1878, he was rearrested in Indiana and brought back to Kansas; and on March 14th, 1879, was for the first time placed in the penitentiary. Since that time he has been in the custody of said Henry Hopkins, warden of the penitentiary as aforesaid.”
Hollon excepts to the sufficiency of this return, on the ground that it does not state facts sufficient to authorize said Henry Hopkins to hold him in custody. He claims that the time for which he was sentenced to the penitentiary has expired, and therefore that his present imprisonment in the penitentiary is unlawful. He claims that by mere lapse of time he is absolutely discharged from all further prosecution, imprisonment or punishment for said offense of perjury. He claims that all proceedings prior to the sentence were merged in and exhausted by the sentence, and that the sentence itself has been exhausted by lapse of time. And he further claims that even if said prior proceedings have not been exhausted, still that the sentence has been exhausted, and that he can never be legally imprisoned under that sentence.
We have no statute directly applicable to this case. The following are the statutes referred to, but none of them seem to be applicable: Gen. Stat. of 1868, pages 356, 357, 358, §§179, 180, 181, 182, 191; id., pages 613, 614, §18; Laws of 1869, page 210, § 5; Laws of 1876, page 201, §§ 1, 3. It is not claimed by either party that any one of these statutes is applicable, except possibly said §191.
It seems to us so clear that Hollon might have been rearrested and imprisoned in the penitentiary under the origi-, nal sentence, at any time prior to September 19, 1877, the time when his sentence apparently expired, that we shall not waste words nor cite authorities to prove the same. Counsel have cited some of the authorities. In such cases, where a serious question of identity arises it may be safer to take the prisoner before the court that originally pronounced the sentence, where the question of identity may be litigated and determined; and if the prisoner is then shown to be the escaped convict, he may be resentenced. But all of this is unnecessary, except for safety, for the question of identity may always be determined on a writ of habeas corpus. If the prisoner is in fact the escaped convict, then his arrest and imprisonment in the penitentiary are lawful without any re-sentence. These remarks have reference to a prisoner who has escaped prior to his imprisonment in the penitentiary; for where he escapes afterward, the statute applies and prescribes the practice. (Laws of-1876, p. 201.)
But as Hollon was not rearrested or imprisoned in the penitentiary until after the term for- which he was sentenced had apparently expired, was his rearrest and is his imprisonment lawful? We think both-were and are lawful. We do not think that the proceedings had prior to the sentence, nor even the sentence itself, so far as its essentials are concerned, were exhausted by lapse of time. The only way of satisfying a judgment judicially, is by fulfilling its requirements. Of course, if Hollon had died or been pardoned, the sentence would be at an end. But as these things have not happened, and as the sentence has not been disturbed by any judicial decision or determination, there is no way of satisfying its requirements or of exhausting its force except service by Hollon of the required time in the penitentiary. It has often happened that a judgment sentencing a person to be executed capitally on some particular day, has not been fulfilled on that day. A reprieve has been granted, an escape effected, some unforeseen event preventing it has occurred, or the officers from some cause have failed to perform their duty, and the convict has for the time being escaped punishment. But in no case, so far as we are informed, has it been held that the convict was thereby freed from all punishment, or that he could not be executed on some subsequent day. See the following authorities: Ex parte Nixon, 2 Rich. N. S. (S. C.), 4, 6, and cases there cited; Howard, ex parte, 17 N. H. 545; State v. Oscar, 13 La. Ann. 297; Lowenberg v. The People, 27 N. Y. 337; Rex v. Harris, 1 Ld. Raymond, 482. If a fine should not be paid at the time ordered, it could certainly be afterward collected. The time fixed for executing a sentence, or for the commencement of its execution, is not one of its essential elements, and strictly speaking is not a part of the sentence at.all. See cases above cited, and State v. Cocherham, 2 Ired. (N. C.) 204; Ex parte Isaiah Bell, Supreme Court of Mississippi, 1879; and Dolan’s Case, 101 Mass. 219. The essential portion of a sentence is the punishment, including the land of punishment and the amount thereof, without reference to the time when it is to be inflicted. The sentence with reference to the kind of punishment and the amount thereof, should as a rule .be strictly executed. But the order of the court with reference to the time when the sentence shall be executed is not so material. The time when a sentence is to be executed is usually fixed by an order of the court; but it is not always necessary, as will be seen from the authorities, that it should be thus fixed. Where the punishment ordered is imprisonment in the penitentiary, and where the time for the imprisonment to commence is fixed by the court, the imprisonment will usuálly be deemed to have commenced at the time ordered by the court, unless the convict by his own wrong has prevented it; and where the time for the commencement of the imprisonment has not been fixed by the court, the imprisonment will usually be deemed to have commenced on the day of the sentence (Ex parte Meyers, 44 Mo. 280), unless the convict by his own wrong has prevented it. But in no case will the term of imprisonment be deemed to have commenced .prior to actual imprisonment, unless the actual imprisonment has been prevented by some cause other than the fault or wrong of the convict. As said in Dolan’s Case (101 Mass. 223), “ Expiration of time without imprisonment is in no sense an execution of sentence.”
The two cases nearest applicable to this case are those of Ex parte Clifford, 29 Ind. 106, and said Dolan’s Case. In the former case it was held:
“ Where a prisoner escapes after conviction, and is- not retaken until after the expiration of the time for which he was sentenced, he may be held until he has completed the full term for which he was sentenced. The statute (2 G.
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The opinion of the court was delivered by
Valentine, J.:
This is an action of habeas corpus, brought originally in this court by Joseph Hollon against Henry Hopkins. The defendant makes return to the writ, stating among other facts the following, to wit:
“The said Henry Hopkins is the warden of the penitentiary of the state of Kansas, and holds the said Joseph Hollon in his custody by virtue of a judgment rendered by the district court o'f Marion county, Kansas. Said judgment was rendered on September 25th, 1874, and by it Hollon was sentenced, on a conviction duly had September 19th, 1874, for perjury, to imprisonment in the penitentiary ‘for the period of three years from the 19th day of September, A. I). 1874.’ On the next day after said sentence, Hollon escaped from the custody of the officer then having him in charge, and became a fugitive from justice. On May 28th, 1878, he was rearrested in Indiana and brought back to Kansas; and on March 14th, 1879, was for the first time placed in the penitentiary. Since that time he has been in the custody of said Henry Hopkins, warden of the penitentiary as aforesaid.”
Hollon excepts to the sufficiency of this return, on the ground that it does not state facts sufficient to authorize said Henry Hopkins to hold him in custody. He claims that the time for which he was sentenced to the penitentiary has expired, and therefore that his present imprisonment in the penitentiary is unlawful. He claims that by mere lapse of time he is absolutely discharged from all further prosecution, imprisonment or punishment for said offense of perjury. He claims that all proceedings prior to the sentence were merged in and exhausted by the sentence, and that the sentence itself has been exhausted by lapse of time. And he further claims that even if said prior proceedings have not been exhausted, still that the sentence has been exhausted, and that he can never be legally imprisoned under that sentence.
We have no statute directly applicable to this case. The following are the statutes referred to, but none of them seem to be applicable: Gen. Stat. of 1868, pages 356, 357, 358, §§179, 180, 181, 182, 191; id., pages 613, 614, §18; Laws of 1869, page 210, § 5; Laws of 1876, page 201, §§ 1, 3. It is not claimed by either party that any one of these statutes is applicable, except possibly said §191.
It seems to us so clear that Hollon might have been rearrested and imprisoned in the penitentiary under the origi-, nal sentence, at any time prior to September 19, 1877, the time when his sentence apparently expired, that we shall not waste words nor cite authorities to prove the same. Counsel have cited some of the authorities. In such cases, where a serious question of identity arises it may be safer to take the prisoner before the court that originally pronounced the sentence, where the question of identity may be litigated and determined; and if the prisoner is then shown to be the escaped convict, he may be resentenced. But all of this is unnecessary, except for safety, for the question of identity may always be determined on a writ of habeas corpus. If the prisoner is in fact the escaped convict, then his arrest and imprisonment in the penitentiary are lawful without any re-sentence. These remarks have reference to a prisoner who has escaped prior to his imprisonment in the penitentiary; for where he escapes afterward, the statute applies and prescribes the practice. (Laws of-1876, p. 201.)
But as Hollon was not rearrested or imprisoned in the penitentiary until after the term for- which he was sentenced had apparently expired, was his rearrest and is his imprisonment lawful? We think both-were and are lawful. We do not think that the proceedings had prior to the sentence, nor even the sentence itself, so far as its essentials are concerned, were exhausted by lapse of time. The only way of satisfying a judgment judicially, is by fulfilling its requirements. Of course, if Hollon had died or been pardoned, the sentence would be at an end. But as these things have not happened, and as the sentence has not been disturbed by any judicial decision or determination, there is no way of satisfying its requirements or of exhausting its force except service by Hollon of the required time in the penitentiary. It has often happened that a judgment sentencing a person to be executed capitally on some particular day, has not been fulfilled on that day. A reprieve has been granted, an escape effected, some unforeseen event preventing it has occurred, or the officers from some cause have failed to perform their duty, and the convict has for the time being escaped punishment. But in no case, so far as we are informed, has it been held that the convict was thereby freed from all punishment, or that he could not be executed on some subsequent day. See the following authorities: Ex parte Nixon, 2 Rich. N. S. (S. C.), 4, 6, and cases there cited; Howard, ex parte, 17 N. H. 545; State v. Oscar, 13 La. Ann. 297; Lowenberg v. The People, 27 N. Y. 337; Rex v. Harris, 1 Ld. Raymond, 482. If a fine should not be paid at the time ordered, it could certainly be afterward collected. The time fixed for executing a sentence, or for the commencement of its execution, is not one of its essential elements, and strictly speaking is not a part of the sentence at.all. See cases above cited, and State v. Cocherham, 2 Ired. (N. C.) 204; Ex parte Isaiah Bell, Supreme Court of Mississippi, 1879; and Dolan’s Case, 101 Mass. 219. The essential portion of a sentence is the punishment, including the land of punishment and the amount thereof, without reference to the time when it is to be inflicted. The sentence with reference to the kind of punishment and the amount thereof, should as a rule .be strictly executed. But the order of the court with reference to the time when the sentence shall be executed is not so material. The time when a sentence is to be executed is usually fixed by an order of the court; but it is not always necessary, as will be seen from the authorities, that it should be thus fixed. Where the punishment ordered is imprisonment in the penitentiary, and where the time for the imprisonment to commence is fixed by the court, the imprisonment will usuálly be deemed to have commenced at the time ordered by the court, unless the convict by his own wrong has prevented it; and where the time for the commencement of the imprisonment has not been fixed by the court, the imprisonment will usually be deemed to have commenced on the day of the sentence (Ex parte Meyers, 44 Mo. 280), unless the convict by his own wrong has prevented it. But in no case will the term of imprisonment be deemed to have commenced .prior to actual imprisonment, unless the actual imprisonment has been prevented by some cause other than the fault or wrong of the convict. As said in Dolan’s Case (101 Mass. 223), “ Expiration of time without imprisonment is in no sense an execution of sentence.”
The two cases nearest applicable to this case are those of Ex parte Clifford, 29 Ind. 106, and said Dolan’s Case. In the former case it was held:
“ Where a prisoner escapes after conviction, and is- not retaken until after the expiration of the time for which he was sentenced, he may be held until he has completed the full term for which he was sentenced. The statute (2 G. & H., §§55, 56, p.454) was not intended to change the common-law rule in regard to the capture of escaped felons, but only to authorize an additional holding after the sentence has been fulfilled, until a prosecution can be instituted for the escape.” “It did not require legislation to authorize the recapture of an escaped prisoner, and his confinement until he has-served out the full continuous term of his sentence.”
Section 56 of the Indiana statute above referred to is almost precisely like our § 191, Gen. Stat. 358, already referred to. Said §191 has reference to punishment for escapes, and was not intended to abrogate or annul previously-existing sentences. It means that if a convict escape, he may at any time afterward, however long or however short, be rearrested and imprisoned, and that he shall remain so imprisoned, even after the term for which he was originally sentenced has in fact and in law expired, until he can be prosecuted for the escape, or until such prosecution is abandoned. The section we think does not affect the law of this case in the least, In Dolan’s Case it was held:
“The sentence of a convict to imprisonment for a term expressed only by designating the length of time, is to be satisfied only by his actual imprisonment for that length of time, unless remitted by legal authority; and if a sentence is limited to take effect upon the expiration of a previous sentence, its period will not begin to run until the first sentence has so been fully performed or legally discharged. If a prisoner under sentence to be imprisoned for a term expressed only by the length of time, escapes during the term, the period during which he remains at large does not abridge the period of imprisonment which remains for him to suffer before fully performing the sentence.”
In the present case, the court sentenced Hollon to be imprisoned in the penitentiary “for the period of three years,” less five days. The court also designated the time when such “period” should commence. Now according to the authorities, the amount of the imprisonment prescribed by the court is material, and inheres in -the sentence; but the time when the imprisonment should commence is comparatively immaterial, and technically does not belong to the sentence. It is so immaterial that courts are not bound to hold that the imprisonment actually or in law did commence at the time when the court said it should commence, if in fact and by the convict’s own wrong it never did commence. It would probably be the safer practice in cases of this kind, where the convict escapes and remains absent until the whole of the time as fixed by the court for his imprisonment or for the execution of his sentence has elapsed, to take such convict again before the court that sentenced him, so that the'court might resentence him, or in other words, “order the execution of its former judgment.” State v. McClure, Phillips (N. C.), 491, 492; State v. Wamire, 16 Ind. 357; Ex parte Isaiah Bell, Supreme Court of Mississippi, 1879. But still we do not think that such practice is necessary. The records of the court show that the convict was sentenced, and the records of the penitentiary show that the sentence has not been executed. Nothing is therefore left to be shown except the identity of the prisoner, and the reasons for the failure to imprison him at the proper time. If in fact the prisoner is not the convict, or if in fact he has been pardoned or his sentence revoked, these things may be shown as well on proceedings in habeas corpus as on proceedings in the court where the convict was originally sentenced. We think that Hollon’s sentence is still in force — not executed; not revoked, not annulled, nor exhausted by lapse of time.
The return of the said Henry Hopkins to said writ of habeas corpus is therefore considered sufficient.
All the Justices concurring.