Harrington v. Bader

On July 31, 1905, the plaintiff in error was sentenced to the work house of the city of Cincinnati to serve three successive sentences each of six months’ imprisonment and fine of $300 ivith costs for housebreaking. On August 1, 1905, he was delivered to the chief of police of the city of Cincinnati under the following order:

“State of Ohio, Hamilton County, ss. Police Court of the City of Cincinnati.

“To the Superintendent of the Work House:

“Deliver to Paul M. Millikin, Chief of Police of the City of Cincinnati, the body of Wm. Harrington, now in your custody, charged ivith housebreaking, committed July 31, 1905, for new trial.

“By order of court.

“Attest: Aug. Kirbert,

“ (Seal). Clerk of the Police Court,

“By F. G. Good, Deputy.

“Cincinnati, 8-1, 1905.”

Counsel assume that.the effect of this order was an unconditional suspension of the sentences which amounted to a final discharge of the prisoner; but there is nothing upon the face of it to indicate that any suspension or modification of the sentences was intended.

The presumption-is that the removal of the prisoner from the ivorkhouse into the custody of the chief of police ivas -by- legal process, as contemplated by Section 5748, Revised Statutes, and if not, the sentences continued in full force ivithout loss of time b.y the prisoner. .

- It appears, however, from other evidence, not the best, that he was delivered to the chief of police for the purpose of being re*259turned to the Ohio penitentiary, whence he had escaped. It is unnecessary to determine whether this delivery was authorized by law on demand of the warden of the penitentiary, because under the several commitments his time would not in any event expire till December 21, 1910.

The better practice no doubt would be to await the expiration of his term in the work house when the warden could, under Section 7404, Revised Statutes, arrest and recommit him to the penitentiary.

The prisoner is not now, at least, entitled to a discharge, and the judgment of the common pleas court dismissing his petition and remanding him to the custody of the superintendent' of the work house will be affirmed.