Stalker

44 N.E. 1068, 167 Mass. 11, 1896 Mass. LEXIS 3

• Court: Massachusetts Supreme Judicial Court
• Decided: October 22, 1896
• Status: Published

Opinion

Holmes, J.

We assume, as contended for the petitioner, that there was error in his sentence because it did not include solitary imprisonment. Lane v. Commonwealth, 161 Mass. 120, 122. But on a writ of error this could be corrected. Pub. Sts. c. 187, § 13. Jacquins v. Commonwealth, 9 Cush. 279. Sennott’s case, 146 Mass. 489, 494. The case is not like Lx parte Lange, 18 Wall. 163, where the petitioner was liable only to fine or imprisonment, but was sentenced to- both, had been imprisoned, and had paid his fine. In that case it was held that the court had no jurisdiction to impose a new sentence of imprisonment. See also Feeley’s case, 12 Cush. 598, 600. But in the case at bar the prisoner’s sentence is correct as far as it goes, he has suffered nothing that is not consistent with the further penalty which' he says ought to be imposed upon him, and there is nothing to hinder -that being added before his term expires. It is true that, by Pub. Sts. c. 215, § 23, “in the execution of such sentence, the solitary imprisonment shall precede the punishment by hard labor, unless the court otherwise orders,” but that can be met, if necessary, by an order in the amended sentence.

Manifestly, it would be an absurd result if the petitioner could get his discharge on habeas corpus when he could not get it by a regular proceeding to reverse his sentence. Biit whether the sentence could be corrected or could not be, the rule which has been approved by this court denies relief by habeas corpus when the court has jurisdiction to sentence the petitioner and errs simply in regard to the extent of the punishment. Sennott’s case, 146 Mass. 489, 492, 493. Feeley’s case, 12 Cush. 598, 599. See Ex parte Bigelow, 113 U. S. 328; In re Belt, 159 U. S. 95.

Petition denied.