heard the case in vacation and rendered the following decision:
This case is before me upon a writ of habeas corpus awarded, issued and directed to Thomas Ford, sheriff of New Castle county,
The facts set forth in the petition are omitted.
The petitioner asks that he be discharged on the ground that the term for which he was imprisoned has expired by mere lapse of time, although the period of his actual imprisonment has been less than that for which he was sentenced by reason of his unlawful escape a>nd absence at large for a period of nine years, seven months and ten days, or thereabouts.
The legal aspects of this case are novel, as the career of the petitioner is notable in the criminal annals of our State. ■ This case differs from all the cases cited in argument in two respects; first, that though cases have been cited where in the sentence the term of imprisonment was fixed and its commencement specified, yet none have been found where the ending also was specified; second, that while a statute in Delaware prescribes that in the sentence the term of imprisonment shall be fixed and the time of its commencement and ending specified, no case has been cited which was subject to the operation of any similar statute in respect either fixing the term or specifying either the time of its commencement or ending. In these respects, therefore, the question raised in this case seems to be as novel elsewhere as it is of. first impression in this State.
The principal inquiries in the determination of the pending case, therefore, are:
First—Can a prisoner who has unlawfully escaped be recaptured after the date specified in his sentence for the ending of his prescribed term of imprisonment and legally be required to serve thereafter a period equal to his illegally being at large, in actual fulfilment of the entire term or amount of the imprisonment fixed in his sentence in case no statute prescribes either that the term shall be fixed, or its commencement specified or its ending specified ?
Second—And, if so, should the law be otherwise in case a statute, as in the present instance, expressly prescribes that “ when
The satisfactory solution of these questions must, I conceive^ be found in the consideration of the following inquiries, viz:
First—Is a wrong-doer to be permitted to take the advantage of his own wrong ?
Second—Is the date and manner of the punishment to be of greater importance than its kind and amount?
Third—Is the strict letter to prevail over the general purpose of a statute, and an absurd instead of a reasonable intention to be attributed to the law-maker?
A careful examination of' the authorities will, I am satisfied, upon both principle and precedent, furnish a negative answer to each of these inquiries.
More than two centuries ago, that wise and just maxim of the common law, which is the controling principle of this case, was expressed by Sir Matthew Hale in his Pleas of the Crown, page 602, as applicable to an unlawful escape, in these words : “ If a felon
escapes out of the gaol by negligence though the gaoler be fined for it, he may retake the felon at any time after, for the felon shall not take the advantage of his own wrong, or the gaolers punishment; but his retaking shall not discharge the gaolers fine.” And this common law maxim has from his day to the present been constantly enunciated by courts until it has become a settled and generally recognized principle of criminal jurispruduence.
In its application to unlawful escapes from legal imprisonment it assumes that the object of punitive law, whether common or statutory, is to protect the public by preventing the commission of crime and that this end is best sought by the infliction of penalties designed to deter or reform those disposed to commit crime.
Punishment then, is the main purpose of the law and of the judgment pronounced in conformity therewith, and the kind and amount of punishment, and not the mere date or manner of its execution, are the essential and substantial part of the sentence, 21
Both common sense and the purport of punitive law require that the convicted and sentenced criminal shall suffer the whole, and not unlawfully escape from any part of his prescribed punishment; that expiration of time without^ actual imprisonment shall in no sense be deemed an execution of the sentence; and that four months-in prison and more than nine years out of it, shall not mean being “ imprisoned 10 years,” as this sentence prescribes. It is no sufficient answer to urge that both to recapture and re-imprison the escaping prisoner after the original term of his imprisonment had in mere course of time elapsed, would be an enlargement of his sentence and an increase of his punishment, and therefore in violation of the principles of law enunciated in the numerous authorities cited in that behalf.
This is not a case to which those authorities are applicable, for
Nor is it sufficient to object that, because an indictment and conviction for an unlawful escape may possibly be had, and the prisoner thereby be punished by imprisonment for a period sufficient to cover the time of his being illegally at large, therefore the prisoner may not after his prescribed term has expired, by lapse of time merely, be retaken and reimprisoned until its fulfillment by actual imprisonment.
The offence of escaping from lawful imprisonment is another and entirely different crime from that for which the petitioner was sentenced and is now held and, as such, is subject to its own peculiar and appropriate punishment.
In Cleek v. Commonwealth, Virginia Court of Appeals, 21 Grattan, 782, the court say, “ Surely a man can not avoid the punishment of one crime by committing another; cannot get rid of an imprisonment to which he has lawfully been condemned by breaking jail and making his escape. Nothing would seem to be plainer than this.”
And in ex parte Clifford, Supreme Court of Indiana, 29 Ind. 106, this objection was directly raised and expressly overruled; the court there holding first, <c that where the 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; ” and second, “ that the statute ” (of Indiana, providing for a recapture of an escaping convict and punishment for the escape,) “ was not intended to change the common law rule in regard to the capture of an escaping felon, but only to authorize an additional holding after the sentence has
The court, in this case, also recognized that a penal statutory provision was to be construed as if enacted in view of and subject to this common law'principle, as may reasonably be held in regard to our statute in its effect upon the pending case.
And the law as declared in this Indiana case in 1867, was subsequently in 1879, expressly approved and affirmed in Hollon v. Hopkins, Supreme Court of Kansas, 21 Kansas, 638, 644.
The Kansas court, in this case, in a comprehensive review of the leading and latest authorities bearing upon the law applicable to the case now under consideration has satisfactorily shown that the principles needful to the determination of the present case against the petitioner’s application have been authoritively settled.
It is true that neither this Kansas case nor any reviewed by it furnished an instance where the ending of a fixed term of years, or other divisions of time was specified in the sentence, either with or without a statutory provision prescribing this. But the same principles which were recognized in those cases and governed them are equally applicable to, and decisive of a case like the present, which furnishes such an instance. At least, they extend decisively to a case where the ending of a fixed term of imprisonment may be specified in the sentence in the absence of any statute requiring it, as was in fact conceded by the petitioner’s counsel in the argument.
But it was nevertheless strenuously contended in the pending
But it must be remembered that the ancient rule of law that penal statutes were to be construed strictly, in favorem vitae, has been greatly modified in modern times. “ in the early stages of English jurisprudence,” says Sedgwick, “ it was often invoked and acted upon by the judges, partly, no doubt, from a hudnaue desire to mitigate the rigors of the criminal law as it then stood.” Sedgwick’s Statutory Law, 280, 282.
It is an impressive fact, that in England in 1765, there were no less than one hundred and sixty different offences punishable by death, and in 1810, nearly double that number; while in 1844 this “ dreadful list” had been reduced to 12 only. Thus, the cause having been removed, the ancient strictness of construction in favorem vitae, has ceased, and hence the more reasonable modern rule of construction of penal statutes now prevails.
For instance: In Commonwealth v. Loring, 8 Pick., 374, it was said by Parker, chief justice, delivering the opinion of the court, “ But it is said that penal statutes admit of no latitude of construction; that they are to be taken strictly, word for word, let the consequences be what they may.
It is true it is so laid down as a general rule; and the reason is that the Court shall not be allowed to make that an offence which is not made so by the legislative enactment. But the rule does not exclude the application of common-sense to the terms made use of in the act, in order to avoid an absurdity, which the Legislature ought not to be be presumed to have intended. There are cases which show this, although precedents would not be required to sustain so reasonable a doctrine.”
In Bacon’s Abridgment, Vol. 6, page 382, it is said: “If divers statutes relate to the same thing, they ought to be all taken into consideration in construing any of themand again, page 391, “ Such a construction ought to be put upon a statute as does not suffer it to be eluded.”
With these canons of construction kept in view, it ought not to be difficult to reach a conclusion in the case under consideration.
The petitioner has been convicted under the provisions of Sec. 8, Chap. 128, of our Code which defines the crime, and designates the appropriate penalty, viz.: Fine, whipping, pillory and imprisonment not exceeding 10 years ; the court having the discretionary power to fix the precise number of years. The primary object of this action is manifestly punishment for crime.
The petitioner has been sentenced in accordance with the requirements of said section and also in compliance with the directions of the following clause of section 8, chapter 133 of our code, viz.: “ When imprisonment is a part of the sentence, the term shall be fixed and the time of its commencement and ending specified. An act to be done at the expiration of a term of imprisonment shall be done on the last day thereof unless it be Sunday, and in that case on the day previous. Months shall be reckoned as calendar months.” The exact phraseology of the petitioner’s sentence has already been stated in the recital of his petition. It will be observed that section 8, chapter 133, prescribes first that the term or quantum of imprisonment shall be fixed, and second, that the time of its commencement and ending shall be specified, but does not prescribe that the court shall decree simply that he shall be imprisoned for instance from December 10th, 1873, until December 9th, 1883, without any mention or fixing of the term or number of the years of his imprisonment.
Viewing it thus it seems indisputable that the only reasonable interpretation of the said language as used in the statute, and in the sentence rendered in conformity therewith, is that the Legislature intended and expected—as did the court in rendering it—that the prisoner would (as the law presumes) remain in prison continually for the prescribed_number of years next preceding the time specified for the ending of his term of imprisonment, and they, therefore, directed such time to be named as the ending thereof, for reasons of convenience merely.
For, if théy expected the prisoner so to remain, how can it be truly said that they intended that the time so specified should be the absolute ending of the term, if, in fact, he should really escape and not actually remain in prison even one-tenth of the prescribed number of years ?
The conclusion seems unavoidable that our statute, in requiring the said times of commencement and ending to be specified, simply prescribes a rule of mathematical convenience as a matter of descriptive detail which is subordinate to the paramount rule of fixing the term or quantum of the imprisonment.
To adopt this view, is to give a consistent and reasonable effect to the entire statute.
To maintain the contrary, is to hold that our Legislature intended that what was of lesser should control that which was of greater importance, and that what was not indispensable should be paramount to that which was absolutely necessary. This would be reductio ad absurdum. It would maintain that our General Assembly intended to reward the convicted criminal by a reduction of his punishment if he would study to elude instead of suffer the just
I prefer, in the determination of this case, to adopt the more reasonable view—that our General Assembly, in the enactment of this statute, had in view our entire punitive policy and the common law maxim and principles already referred to, and therefore intended that the criminal who should commit the additional crime of unlawfully escaping from legal imprisonment should be compelled, whenever recaptured, whether before or after the specified ending of his prescribed term, to suffer actual imprisonment equal to the entire original term or quantum imposed by his sentence.
In the present case the petitioner was sentenced to be—to quote the actual language of the court—“ imprisoned 10 years;” as well as to be whipped and pilloried, and to pay $500 fine and the costs-of prosecution.
The whipping and pillory portions of the sentence have been inflicted, but he has never yet been “ imprisoned 10 years,” because, owing to unlawful escapes, he has been illegally absent from his prison for a period of nine years, seven months and 10 days, or thereabout.
To undergo and complete his full term of imprisonment, therefore, he should suffer further imprisonment equal to that portion of the 10 years of his prescribed term during which he was unlawfully absent from our county jail.
. But even if this view of the law should be incorrect, so far as it relates to the imprisonment imposed by the sentence, yet the petitioner may, nevertheless, be held until be has paid the fine and costs imposed, thereby, which it appears he has not yet done.
I am constrained, therefore, to decide that the petitioner may lawfully be held until the sentence of the court has in all respects-been carried into execution.
It is, therefore, ordered that the writ and proceedings be dis
1 Hale, P. C., 602; 1 Bish. Crim. Pr. (3d Ed.) §§ 1382-1385; Ex parte Edwards, 3 Crim. Law Mag., 201, (Van Syckel, J.:) Cleek v. Com., 21 Grat,, 777; State v. Cockerham, 2 Ired., 204; Ex parte Clifford, 29 Ind., 106; Dolan’s Case, 101 Mass., 219; Hollon v. Hopkins, 21 Kan., 638. Hurd. Hab. Corp., § 4, p. 21; Id. § 2, p. 218; Id. § 3, p. 331; 1 Harr., 392; 9 Wheat., 532; 8 Ohio, 579; 1 Md. Ch., 272; 2 Md. Ch., 42; 1 Fla., 198; 3 Yerg., 169; 5 How. (Miss.) 80; 1 Curt., 178.
Hurd. Hab. Corp., 562, 563; 8 Reporter, 121; 6 Johns., 429; 13 Mees. & W., 678; 4 Gill., 304; Hurl. & Co., 565, 567; St. Md.; 4 Gill., 304; 25 Md., 505; Ex parte Coston, 23 Md., 271; People v. Brady, 56 N. Y., 183; 1 Pen. & W., 82; 6 Johns., 424; 8 State Trials, 90; 4 Harr., 572.
At the hearing of the case in Court the Attorney-General moved to dismiss the petition, on the ground that the case had already been decided by Grubb, J., in vacation. The court refused the motion.
delivered the opinion of the Court: The question involved in this case is purely a question of law ; for it depends solely upon the construction this court is to give to the words of so much of the sentence pronounced upon the petitioner and others, on their conviction of the crime of burglary several years ago in the court of general sessions of the peace and jail delivery in and for this county, as fixed the term of 10 years for his imprisonment in the jail of the county, to commence on the
I have carefully considered this question, and examined all of the cases to which we have been referred, and fully concur in the ■correctness of the decision of the court in each of them on the facts of the case, and the question or questions of law involved in them, respectively, down to and including the Case of Wright, recently decided, since this case was argued, in the court of quarter sessions in Philadelphia, on a writ of habeas corpus by him against the keeper of the county prison in that city and county, and to a newspaper report of which «my attention has been still more recently ■called; but, like all the other cases, it was materially different from this case. According to the brief statement of it, the petitioner, Wright, was sentenced on the fifth’ day of February, 1886, to a term of imprisonment for seven months in the county prison. While serving out the term of his sentence, on the fifteenth day of April, 1886, upon the petition of one of the keepers of the prison, and the certificate of two physicians, he was sent to the state hospital for the insane at Norristown. Having recovered, he was returned to prison on the twenty-ninth day of September, 1886, where he remained at the time when the writ of habeas corpus was issued, on the twenty-first day of October, 1886. His detention in prison after he was returned there, .and beyond the date when the seven months limited in the sentence expired, was based
In several of the cases cited by the counsel for the petitioner, the application of the prisoner for relief from his imprisonment was based and granted upon some fatal error committed by the court, and apparent on the record in entering the judgment and sentence, or in attempting to modify or alter a sentence too long after it had first been entered by the court in the case; but in this ■case nothing of that kind has been alleged, or c.an be shown, or any interference whatever by the court with the sentence or record, or any action whatever by the court in the case after it had been closed, and the judgment and sentence had been originally entered in it. On the contrary, the record and sentence in this case stands now in all respects just as it stood then, so far as any further action of the court upon it in any way was concerned. No cited case of the kind which I have last referred to, therefore, can have any application to the facts of this case, or furnish any but a false or mistaken light for the sound consideration and proper decision of it. Nor has that court had anything since to do in or with the case, until this petition was presented in this present case. Rut just as the unlawful escape of the prisoner and petitioner left it suspended, unexecuted, and wholly inoperative for more than 10 years, it stood until the executive, not the judicial; department of the state government, pursuant to the power and authority conferred upon it alone, in such a case and for that purpose, by the constitution of the United States, proceeded upon the evidence of it, as it was its official duty to do, without any action, direction, or participation of the court with him in the matter, to recapture and retake him, as a convicted felon and fugitive from justice into another state from this state, and to remove him to this, and to recommit him to his imprisonment here, to be proceeded against according to law. .There is no limitation to this proceeding provided in the constitution of the United States, or prescribed by any statutory provision of the United States or of this state, and it may therefore be instituted at any time. p
The statutory provisions in question are as follows : First, that any person convicted of burglary with intent to commit larceny shall be guilty of felony, and, among other things prescribed in the penalty for it, “ shall bé imprisoned for a term not exceeding ten years,” (Rev. Code, 772, § 8;) second, when imprisonment is a part of the sentence, the term shall be fixed, and the time of its commencement and ending specified. An act to be done at the expiration of a term of imprisonment shall be done on the last day thereof, unless it be Sunday, and in that case on the day previous. Months shall be reckoned as calendar months. Rev. Code, 795, § 8. And, so far as it imposed the penalty of imprisonment, the sentence is in these words, “ and be imprisoned for ten years commencing on the tenth inst., [December 10, 1873,] and ending December 9, 1883, and is committed,” etc.
The first and most substantial duty of the Court to be performed in pronouncing this part of the judgment and sentence of the law upon him, according to the clear intent and meaning and express direction of the statute, was to fix the term of his imprisonment, and which, in the exercise of its discretion, was fixed at 10 years, and which, of course, imported absolutely 10 years, no more and no less, and then immediately following that with the specification of the time of its commencement and ending, which specifically comprehended with entire accuracy the term of imprisonment for 10 years just before fixed in the sentence, and which was evidently intended by the makers of the statute to be in entire accord with the immediately preceding part of the sentence, and which as clearly meant and imported the same identical period of time; that is to say, that his term of imprisonment should be for 10 years, no
The principle of the common law to which I have just referred, is very well stated by the court of appeals of the State of New York, in the comparatively recent case of Haggerty v. People, 53 N. Y., 476, decided in 1873. The syllabus of the case is as follows: “In a case where, before the expiration of a term of imprisonment, the prisoner escapes, n.o new award of execution is necessary or proper. The prisoner can be retaken at any time, and confined, under the authority of the original judgment, until his term of imprisonment has been accomplished. An order in such case awarding execution of the sentence will not conclude the prisoner on habeas corpus, and is not reviewable on writ of error.” The facts of the case were that at the Albany sessions of the court of sessions in and for the county of Albany, held on the thirteenth of March, 1872, the district attorney produced to the court an indictment of Haggerty in September, 1868, in that court, for robbery in the first' degree, with the minutes of his conviction for robbery in the second degree, and sentence to the Clinton prison for three years. Haggerty was brought to the bar, whereupon the district attorney filed an information or suggestion alleging the indictment, conviction, and sentence; that he was committed to the Clinton prison; and that on the fourteenth day of October, 1869, he escaped from the prison, and had ever since been at large. The information prayed that the Court would order the execution of its former judgment, and that execution thereof might be awarded against Haggerty; that he be returned to the state prison at Clin
Much and undue stress, in the presentation and argument of the petitioner’s claim to be discharged from his present imprisonment upon the writ of habeas corpus now before us, has been laid, I think, by the learned counsel for the prisoner, upon the humane maxims and fundamental precepts of the law which apply and are always recognized, and always should be, by courts of justice, at the proper time and stage in the prosecution of every criminal case before them, the chief of which is that every person brought to trial before such a tribunal must be presumed to be innocent of the offense charged against him until he is proved to be guilty of it;
And with all this array of law and legal regularity in the proceedings against the petitioner which resulted in his recapture and return to jail in this county, and to the alleged unlawful imprisonment of which he now complains in the writ before us, the only wrong or unlawful thing on which he can rely to establish his legal right to be discharged from it was his own unlawful act in breaking jail, and escaping from imprisonment, during the term fixed for it, and which he does not pretend to deny was wrongful and unlawful on his part; but because, as he alleges and the state denies, he was unlawfully recaptured and returned to imprisonment in said jail after the term of 10 years fixed, and the time specified in the
Although the common-law writ of habeas corpus is older than magna charta, the bed-rock of British freedom in after ages, it was-made substantially all that it now is, as the great bulwark of every freeman in England against unlawful imprisonment is derived from that renowned section of it which, among other things, declares-that “ no freeman shall be taken or imprisoned unless by the legal j udgment of his peers, or by the law of the land •” and in such case, of course, he can have no legal right or claim to be discharged from the imprisonment. But it may well be said in this case that a greater than magna charta is here, that great constitutional guaranty against unlawful imprisonment in England, inasmuch as-that cardinal and consecrated provision of it is substiantially incorporated in the constitution of the United States, and also in the constitution of every state in the Union. But, what is still more unfortunate for the right and claim set up by the petitioner in this case, it conclusively appears that his original imprisonment in this state was by the legal judgment of his peers and the law of the land; that his recapture in the stat'e of New York, after his unlawful escape from it, and his return to his present imprisonment in this State, is by virtue of the same, under the express authority of’ the constitution of the United States, and that it therefor conclu
But if this exposition of the law of the case, which I think entirely covers it, were less satisfactory than it is to my mind, and it depended solely upon the question whether the petitioner could, in a court of law and justice, in a case like this, take advantage of his own wrong, and his further criminal offense against the laws of the State, of unlawfully escaping from his imprisonment, and unlawfully remaining at large,.and until after the term of it had elapsed, on the. ground of any novelty or peculiarity in the phraseology of'the sentence, or of the statutory provisions which prescribe it, the meaning and intention of them being so perfectly clear and o obvious, to completely elude and avoid the effect and operation of it ever afterwards, I must say that a legal proposition so palpably unreasonable and absurd as that could never receive the assent of my judgment; for I know of no principle of law or justice to warrant or tolerate it. My opinion therefore is that the petitioner has no legal right whatever to be discharged under the writ of habeas corpus issued in this case, but should be remanded to the custody of the sheriff of this county, and confined, under the authority of this judgment against him as aforesaid, until his term of imprisonment has been accomplished.