Mieir v. McMillan

Adams, J. i jujjoprSonmenTl cnmmi law. — Section 4508 of the Code is in these words: “If the defendant is convicted of two or more offenses before judgment on either, the punishment of which is or may be imprisonment, the judgment may be g0 ren¿ere¿ that the imprisonment upon any one shall commence at the expiration of the imprisonment upon any of the other offenses.” [242] It is insisted by the appellant that judgment was not so rendered that imprisonment for one offense should commence at the expiration of the imprisonment for the other, and that, such being-the fact, either the two terms must be considered as running concurrently, or the judgment in the second case must be regarded as void. As to the first proposition it is sufficient to say that two terms of imprisonment cannot, in the nature of things, run concurrently, and the only effect of considering it so would be to remit one term. The remaining question is as to whether the judgment in the second case is void. It is insisted by the appellant that in construing a criminal statute nothing is to be made out by inference; that a term of imprisonment must commence forthwith, if there is no other term; that if it cannot commence forthwith, by reason of one or more intervening terms, it cannot commence at all, unless it is expressly provided in the judgment, in accordance with the statute,'that it shall commence at the expiration of some other term, which was not done in this case. Section 4513 of the Code provides that “if the judgment be imprisonment * * * the defendant- must forthwith be committed to the custody of the proper officer, and by him detained until the judgment be complied with or the defendant discharged by due course of law.” This section is applicable to every judgment of imprisonment that is rendered. It follows by necessity that if there is more than one they must follow in immediate succession. The order is not expressly determined. But the judgment first rendered should, in the absence of any provision to the contrary, be first complied with. It may be considered as rendered without reference to any other judgment, because there is no other at that time; and the statute provides in effect that the imprisonment shall ■commence forthwith. The order of the terms, then, unless otherwise provided by the court, must be regarded as determined by the order in which the judgments are rendered. [243] But the just protection of the defendant may require that this order should be departed from. As, for instance, where the defendant is convicted and sentenced to imprisonfnent for two offenses, and he appeals from the judgment in the first cage and not in the second, and is not able to supersede the execution in the case in which he appeals, his just protection would require that his term of imprisonment upon the first judgment be made to commence upon the expiration of the term upon the second. Section 4508 of the Code allows the court to adopt any order in the terms of imprisonment which in its discretion it deems proper. We think that this was the sole design of the section. With this view the failure of the court to make any specific provision in regard to the order of the terms would not affect the validity of the judgments. Affirmed.