In Re Swink , 243 N.C. 86 ( 1955 )

89 S.E.2d 792 (1955) 243 N.C. 86

In the Matter of Joe SWINK.

No. 434.

Supreme Court of North Carolina.

November 9, 1955.

Bert M. Montague, Raleigh, for petitioner, appellant.

Atty. Gen. Wm. B. Rodman, Jr., and Asst. Atty. Gen. Claude L. Love for the State.

R. Brookes Peters, Gen. Counsel, and Parks H. Icenhour, Raleigh, for State Highway and Public Works Commission.

BOBBITT, Justice.

A valid judgment of a court of competent jurisdiction is the real and only authority for the lawful imprisonment of a person who pleads or is found guilty of a criminal offense. Hence, we must look to the judgments to determine the lawfulness of petitioner's present imprisonment. The purpose of a commitment is to advise the prison authorities of the provisions of the judgment. Since a commitment has no validity except that derived from the judgment, to the extent it fails to set forth or certify the judgment accurately the commitment is void and the judgment itself controls. 15 Am.Jur., Criminal Law, secs. 502-503; 24 C.J.S., Criminal Law, § 1607.

Having obtained certified copies of the several judgments as entered on the minutes of the courts, we look to these only in further consideration of the questions presented. We disregard the portions of commitments in conflict with judgments pursuant to which the respective commitments were issued. We would impress upon the clerks that, when issuing a commitment, they are to certify a copy of the judgment exactly as it appears in the court minutes and nothing else.

It is clear that the two cases, No. 203 and No. 204, as well as No. 205, were considered by the Rutherford Superior Court at the same time. The judgments appear on the minutes in immediate succession. Thus, the minutes disclose affirmatively the identity of the judgment pronounced "in No. 203." Under these circumstances, the reference in the judgment in No. 204 to the sentence pronounced "in No. 203" is a sufficient identification thereof. Therefore, the sentence imposed by judgment in No. 204 began upon completion of the sentence imposed by judgment in No. 203.

In cases No. 249 and No. 292, the judgments were pronounced by the Gates County Criminal Court at separate terms. In No. 249, the sentence imposed was "to begin at expiration of existing sentences." In No. 292, the sentence was "to begin at expiration of existing sentence." These provisions lack the degree of certainty required in judgments in criminal cases. They have no meaning apart from what may be disclosed by investigations and evidence dehors the record. Indeed, there is much less certainty in these judgments than in that considered in In re Parker, 225 N.C. 369, 35 S.E.2d 169. As emphasized in the cited case, a high degree of exactitude is required in the pronouncement of judgments imposing penal servitude. Hence, nothing else appearing, they would run concurrently with the sentences imposed by the judgments pronounced in Rutherford Superior Court.

We have not overlooked that portion of G.S. § 148-45 which provides that a sentence imposed thereunder for wilful escape shall "commence at the termination of the sentence being served at the time of the offense". It clearly appears, and is so stated in the briefs, that when the judgments were pronounced in Gates County Criminal Court petitioner was then serving the sentence imposed by the judgment pronounced in Rutherford Superior Court in its case No. 203. Application of this statute would cause the sentences for wilful escape to run concurrently with the sentence imposed by the judgment pronounced in Rutherford Superior Court in its case No. 204.

Also, upon authority of In re Parker, supra, the prison sentences imposed by the judgments pronounced by the Gates Superior Court and the Hertford Superior Court are to be served concurrently.

But, upon authority of In re Smith, 235 N.C. 169, 69 S.E.2d 174, followed in In re Bentley, 240 N.C. 112, 81 S.E.2d 206, the said prison sentences cannot be served concurrently with the road sentences imposed by judgment pronounced by the Rutherford Superior Court and the Gates County Criminal Court because the places of confinement are different. Therefore, the prison sentences began upon completion of the road sentences imposed by the judgments pronounced by the Rutherford Superior Court. Since then they have run concurrently. Apparently, the commutation of prison sentence imposed by the judgment of the Hertford Superior Court was intended to give to petitioner credit thereon for the period between the date of the pronouncement of that judgment and the date of the completion of the road sentences.

For the reasons stated, the order of Judge Williams of 12 January, 1955, is modified by striking therefrom the date of completion of the road sentences and the date when petitioner will be eligible for release. His order remanding petitioner to custody to complete the serving of the prison sentences is affirmed. The sole question for determination upon habeas corpus hearing for alleged unlawful imprisonment is whether petitioner is then being unlawfully deprived of his liberty.

It is apparent that the Hertford prison sentence, after commutation by the Governor of North Carolina, has not expired. As commuted, it remains an indeterminate sentence, for the minimum and maximum terms stated above. Whether the petitioner is to be discharged at the conclusion of the minimum term or at some time thereafter prior to the expiration of the maximum term is for determination by the State Highway and Public Works Commission. G.S. § 148-42.

The State Highway and Public Works Commission, in accordance with law as stated herein, the petitioner's gained time, if any, earned by good behavior, G.S. § 148-13, and the provisions of G.S. § 148-42, will determine the date of petitioner's release.

It appears that the rule laid down in In re Smith, supra, has been changed by Ch. 57, Session Laws of 1955. However, this statute has no bearing upon sentences imposed by judgments pronounced prior to its enactment.

It seems appropriate to add that Bert M. Montague, Esq., who appeared by brief and oral argument in the presentation of petitioner's cause here, did so at the request and by appointment of this Court.

Except as modified herein, the orders of Judge Williams, of 22 January, 1955, and of 24 May, 1955, are affirmed.

Modified and affirmed.