I dissent. Louella Wright filed a petition in the superior court for Clallam county for a writ of habeas corpus, claiming that the sheriff of Clallam county refused to liberate her from his custody although she had served the period of time for which she was sentenced.
The cause was tried to the court, which stated that the petitioner "was booked, but was not taken into the jail before she left for the hospital." The court further stated that petitioner was not under any kind of restriction during the time she was in the hospital, hence, she was not in custody during the time she was in the hospital. On the theory that the petitioner had never been taken into the custody of the sheriff for the purpose of serving her sentence, and that she had served no part thereof, judgment was entered denying the petition for the writ of habeas corpus. Petitioner appealed.
The facts are summarized as follows: When Louella Wright pleaded guilty, April 18, 1947, in the Port Angeles justice court, to the charge of having intoxicating liquor in her possession for the purpose of sale, she was fined three hundred dollars and costs and sentenced to serve sixty days in the county jail, thirty days of which sentence were suspended. The fine and costs were paid at once, and appellant was taken by the sheriff to his office at the county jail, but she was not taken into, nor confined within, the jail.
When the prisoner, who was suffering from congestion in one lung, arrived at the sheriff's office, her physician was called. When he concluded his examination of the woman, the physician advised hospitalization; whereupon, a deputy sheriff placed her in care of a local hospital, with instructions that the sheriff's office be notified if the patient attempted to depart from the hospital. Five days after she was taken to the hospital, the attending physician consented to release the patient from the hospital if she would go home and there remain in bed for two or three weeks. *Page 919
While Mrs. Wright's husband was at the hospital preparing to escort his wife to their home, the sheriff was notified that the patient was being prepared for departure from the hospital. One of the sheriff's deputies went to the hospital and informed Mrs. Wright she had the option of remaining in the hospital or being confined in the jail. The record is clear that Mrs. Wright, who returned to her bed in the hospital, where she remained until May 19, 1947, and was being treated by a physician at the time of this habeas corpus proceeding, was not feigning illness, but that she was a very sick woman.
The trial court was not of the view that appellant had not been in custody of the sheriff when she was taken to the sheriff's office. The court did not hold that appellant had not been in custody prior to the time she was placed in the hospital, and subsequent to the time she was sentenced. The writ was denied for the reason that the court deemed that there was no restraint of appellant's liberty during the period she was in the hospital; therefore, appellant was not in custody while she was in the hospital.
The sentence, imposed by the justice of the peace April 18, 1947, that appellant serve thirty days in jail, commenced immediately, and she was automatically, as a matter of law, in the custody of the sheriff, whose duty it was to execute the sentence.
"The law contemplates that, after a prisoner has been tried and sentenced, he will be committed at once to the custody of the prison officials where the sentence is to be executed. Until such delivery, he is in the legal custody of the sheriff of the county." 18 C.J.S. 110, § 9.
In State ex rel. McCoske v. Kinnear, 145 Wn. 686,261 P. 795, we construed Rem. Rev. Stat., § 1746 [P.P.C. § 769-19], and the rule we enunciated is applicable in misdemeanor cases in courts of justices of the peace, as the statute is in affirmation of the common law. Rem. Rev. Stat., § 1746, provides that,
"In the event no appeal be taken from the judgment of conviction of a felony, the term of sentence imposed upon such judgment shall commence to run from the date of the *Page 920 imposition thereof. In the event an appeal be taken from such judgment of conviction, and upon such appeal the judgment be affirmed, the term of sentence shall commence to run from the date upon which the remittitur shall be filed in the lower court."
In State ex rel. McCoske v. Kinnear, supra, we held that where no appeal is taken, the term of the sentence begins from the date of imposition of the sentence. In the case at bar, the appellant, after sentence, was immediately taken into custody by a deputy sheriff and taken to the sheriff's office at the county jail, where she was booked. Then a physician was summoned to visit and examine appellant, who, upon the report and determination of the physician that she required immediate hospitalization, was placed in the Port Angeles general hospital by the sheriff. If the sheriff had not made this disposition of appellant, he would have been required to confine her in the county jail, as he could not legally have released her to permit her to recover her health prior to the time she commenced to serve her sentence within the jail.
The authorities are uniform that, upon conviction and sentence of a prisoner, it is the duty of the sheriff to take that prisoner into custody and dispose of such prisoner in accordance with the judgment of the court. It would be unlawful for the sheriff to permit the prisoner to go at large. 13 C.J. 920, § 16.
In Kusah v. McCorkle, 100 Wn. 318, 170 P. 1023, L.R.A., 1918C, 1158, we construed Rem. Rev. Stat., § 10195, [P.P.C. § 680-11], which defines the duties of the sheriff respecting prisoners. When the sheriff accepted the recommendation of the doctor and placed the appellant in the hospital, he was performing his statutory duty.
"It is plain that the sheriff's duty in regard to prisoners or others in his lawful custody is twofold; one to the state to keep and produce the prisoner when required, and the other to the prisoner to keep him in health and safety." Kusah v. McCorkle,supra.
In Spicer v. Williamson, 191 N.C. 487, 132 S.E. 291, 44 A.L.R. 1280, a physician sought recovery from the board of *Page 921 county commissioners for professional services rendered to a prisoner in the custody of the sheriff of the county in question. The supreme court of North Carolina, in holding that the duty of the board of county commissioners to provide for necessary medical attention to a prisoner confined at the county jail extended to a person in the lawful custody of the sheriff, who is unable, because of the condition of the prisoner, to take him at once to jail, said:
"It is clearly the duty of the board of commissioners of a county, in this State, as prescribed by statute, to provide for necessary medical attention to a prisoner confined in the county jail, whether such prisoner has been committed to jail as the result of a preliminary trial, or upon a final judgment on his conviction of a violation of law. The board of commissioners owes no less duty to a person, lawfully in the custody of the sheriff, awaiting a preliminary trial, and confined in jail, because he is unable to give bond for his appearance at such trial. A reasonable construction of these statutes extends this duty of the board to a person in the lawful custody of the sheriff, who is unable, because of the condition of the prisoner, to take him at once to the jail. The suggestion in the brief for the board of commissioners filed in this Court, that the board owes no duty to provide for necessary medical attention to a prisoner until he has actually been placed in jail, does not commend itself to us as within a reasonable or necessary construction of the statutes applicable."
The North Carolina statute is not materially different from Rem. Rev. Stat., § 10195.
It should be emphasized that the court did not hold that appellant Wright had never been in custody, but merely found that she was not in custody during the time she was in the hospital. If she was in custody prior to the time she was placed in the hospital, her sentence had commenced, and only an escape under such circumstances would stop the sentence from running. While she was in the hospital, the liberty of appellant was restricted. She was not permitted to go home, but was required to return to her bed in the hospital or to accept quarters in the county jail. Appellant was in the lawful custody of the sheriff. *Page 922
The contention that "custody" means nothing less than actual imprisonment is not tenable. When one is restrained of his liberty, he is in "custody." To be detained or restrained by virtue of a lawful authority, is custody. When appellant was sentenced to serve sixty days in the county jail, thirty days of which were suspended, she was taken by the sheriff to his office in the county jail. Upon the sheriff was imposed the duty of restraining appellant, in whose charge she was until appellant had complied with the sentence, or been discharged in due course of law.
Appellant was lawfully, by reason of the consent of the sheriff thereto, in the hospital for a period of thirty days. That time should be counted as part of the period she was required to serve, as imposed by the sentence. In 24 C.J.S. 1229, § 1995, the rule is announced that the time a prisoner lawfully spends in a hospital for a physical or mental illness should be counted as part of his term, even if the hospital is beyond the confines of the prison. See State v. Brouillette, 163 La. 46, 111 So. 491, and State ex rel. Siehl v. Jorgenson, 176 Minn. 572,224 N.W. 156, 62 A.L.R. 244.
In In re Cavitt, 170 Wn. 84, 15 P.2d 276, Cavitt had been convicted of the crime of unlawfully hunting for deer and was sentenced to thirty days imprisonment in the county jail, and was directed to pay a fine of three hundred dollars and costs. The judgment directed that petitioner be remanded to custody of the sheriff, to be by him detained in the county jail until the sentence, fine, and costs had been satisfied, in accordance with law. We said:
"The petitioner was thereupon committed, and he thereafter remained in the custody and under the control of the sheriff for the full term of his sentence. It appears, however, that, during a portion of his term of sentence, petitioner was assigned as a trusty, performing the usual duties of such persons in and about the jail and upon the court-house lawn. For a period of twenty-seven days, he did manual labor upon a privately owned farm some distance from the jail, for which he received a compensation of one or two dollars per day. This outside work, however, was at the direction of the sheriff, who took him to, and brought him from, the place of work in an automobile owned by the *Page 923 county. Petitioner spent his nights in the jail during the entire term."
After the full expiration of the petitioner's sentence, the sentencing judge learned that the prisoner had spent twenty-seven days of his sentence upon a farm, not his own, receiving the compensation above mentioned. The sentencing judge ordered him to be taken into custody and detained in the county jail for an additional period of twenty-seven days. In granting writ ofhabeas corpus, we said:
"The mere fact that the petitioner was not actually in jail during a part of the time is immaterial. He was in the custody,and subject to the control, of the sheriff. Although he may have been willing to enter upon outside duties, assuming even that it was to his advantage, that does not change the situation. He could not have compelled such an accommodation to himself, nor was his liberty wholly unrestricted when it was accorded. He was still subject to disposition by the sheriff, and was, in fact, held to the same requirements as all other trusties of the jail.
"Nor does the fact that the petitioner was permitted to earn a small compensation for a part of the time, alter the case. It is conceivable that a man, even while in close confinement, might, through his native ability, produce something from which he might secure a monetary consideration. But that does not free him from the restraint which the sentence has imposed upon him. The petitioner was still under the supervision of the sheriff by virtue of Rem. Comp. Stat., § 10195, and under the mittimus from the clerk, the sheriff was required by law to execute the sentence. Rem. Comp. Stat., § 2207. The court, as such, no longer had authority over him.
"For these reasons, we are satisfied that the petitioner was entitled to a writ of habeas corpus; and upon a hearing thereof, we conclude that he is now entitled to have an order from this court immediately discharging him from further custody under the judgment. An order to this effect will go forward at once." (Italics ours.)
I agree with the argument of counsel for the state that, in the absence of a statute providing otherwise, delay in taking the defendant into custody after conviction and sentence in no way releases the convict from the necessity of *Page 924 suffering the full penalty imposed by the sentence. See annotations, 72 A.L.R. 1271.
In the case at bar, however, appellant was taken into the custody of the sheriff for the purpose of serving her sentence. She was in the custody, and subject to the control, of the sheriff, at the time she was placed by the sheriff in the hospital. From the moment appellant was placed in the custody of the sheriff, and for the full period of her sentence, during which time she was in the hospital, where she had been committed by the sheriff because of her illness, she was lawfully restricted of her liberty.
The judgment should be reversed, and the cause remanded with direction to the trial court to discharge appellant from further custody.
SIMPSON and HILL, JJ., concur with MILLARD, J.
January 6, 1949. Petition for rehearing denied.