Riley v. Cloud

107 So. 380, 142 Miss. 352, 1926 Miss. LEXIS 74

• Court: Mississippi Supreme Court
• Decided: March 15, 1926
• Docket: No. 25502.
• Status: Published

Opinion

McGowen, J.,

delivered the opinion of the court.

D. L. Riley, the appellant, sued out a writ of habeas corpus returnable before Hon. W. H. Potter, circuit judge of the Seventh district, against M. M. Cloud, sheriff of Madison county, praying for his release from the custody of said sheriff. The petition for habeas corpus was heard and the prayer of the petition was denied, and the defendant, the appellant here, was ordered committed to the state penitentiary under a former sentence of the circuit court of Madison county.

The facts necessary to state are these: D, L. Riley on July 1, 1925, was sentenced by a justice of the peace in Madison county to serve thirty days in the county jail, also to pay a fine of one hundred dollars and court costs and to stand committed to the county jail until the said thirty days were served and until said fine and costs were paid. The appellant remained in jail from July 1, 1925, until September 28, 1925, the day on which he paid the fine and costs. In the meantime, on July 18, 1925, he was convicted and sentenced by the circuit court of Madison county to serve two months in the state penitentiary “to begin after the expiration of the term he is now serving in the county jail.”

It appears that after the fine and costs were paid, the sheriff did not notify the penitentiary authorities to come for the prisoner, .because appellant’s counsel requested the sheriff not to do so until he could have the petition for the writ of habeas corpus heard. It is the contention of the appellant here that upon completion of the thirty days’ sentence which began to be served on July 1st, thereupon the penitentiary sentence began to be served by the relator and was completed on the date of the suing out of the writ of habeas corpus herein early in the month of October, 1925, contending that the sentence of the circuit court for the relator to serve two months in the state penitentiary begun at the expiration of the thirty-day term imposed by the justice of the peace, and not after the payment of the fine and costs.

It is obvious to us that appellant’s counsel is wrong in his contention, and that the term covered all that was included in the prior judgment of the justice of the peace, and that the penitentiary sentence did not take effect and begin to operate until the payment by the appellant of the fine and costs. The payment of the fine and costs was as much a part of the term of sentence as the jail sentence, and the circuit judge had the right so to fix the beginning of the penitentiary sentence.

If the court had not fixed the date at which the sentence in the penitentiary was to begin, it would have been fixed by law on the day of the rendition of the judgment. Until the defendant paid his fine and costs, the term imposed by the justice of the peace had not been concluded.

In Braxton v. State, 60 So. 66, 103 Miss. 127, Judge Reed, as the organ of the court, said:

“ Sentences in criminal proceedings in this state will take effect and begin to operate from the date of their entry in the judgment of the court, unless some other date be inserted therein.”

In this case the penitentiary sentence did not take effect until September 28th, the date on which the fine and costs were paid by Riley, the appellant.

Affirmed.