{
  "id": 8621350,
  "name": "In the Matter of JOE SWINK",
  "name_abbreviation": "In re Swink",
  "decision_date": "1955-11-09",
  "docket_number": "",
  "first_page": "86",
  "last_page": "92",
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      "cite": "243 N.C. 86"
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    "name_abbreviation": "N.C.",
    "id": 9292,
    "name": "Supreme Court of North Carolina"
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    "name_long": "North Carolina",
    "name": "N.C."
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      "category": "reporters:state_regional",
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      "cite": "69 S.E. 2d 174",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "opinion_index": 0
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    {
      "cite": "235 N.C. 169",
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      "reporter": "N.C.",
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    {
      "cite": "35 S.E. 2d 169",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "opinion_index": 0
    },
    {
      "cite": "225 N.C. 369",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        8608263
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  "last_updated": "2023-07-14T20:18:50.387183+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [],
    "parties": [
      "In the Matter of JOE SWINK."
    ],
    "opinions": [
      {
        "text": "Bobbitt, J.\nA 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\u2019s 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 sec. 1607.\nHaving 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.\nIt is clear that the two cases, #203 and #204, as well as #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 \u201cin #203.\u201d Under these circumstances, the reference in the judgment in #204 to the sentence pronounced \u201cin #203\u201d is a sufficient identification thereof. Therefore, the sentence imposed by judgment in #204 began upon completion of the sentence imposed by judgment in #203.\nIn cases #249 and #292, the judgments were pronounced by the Gates County Criminal Court at separate terms. In #249, the sentence imposed was \u201cto begin at expiration of existing sentences.\u201d In #292, the sentence was \u201cto begin at expiration of existing sentence.\u201d 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.\nWe have not overlooked that portion of G.S. 148-45 which provides that a sentence imposed thereunder for wilful escape shall \u201ccommence at the termination of the sentence being served at the time of the offense.\u201d 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 #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 #204.\nAlso, 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.\nBut, 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.\nFor 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.\nIt 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.\nThe State Plighway and Public Works Commission, in accordance with law as stated herein, the petitioner\u2019s 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\u2019s release.\nIt 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.\nIt seems appropriate to add that Bert M. Montague, Esq., who appeared by brief and oral argument in the presentation of petitioner\u2019s cause here, did so at the request and by appointment of this Court.\nExcept as modified herein, the orders of Judge Williams, of 22 January, 1955, and of 24 May, 1955, are affirmed.\nModified and affirmed.",
        "type": "majority",
        "author": "Bobbitt, J."
      }
    ],
    "attorneys": [
      "Bert M. Montague for petitioner, appellant.",
      "Attorney-General Rodman and Assistant Attorney-General Love for the State.",
      "R. Brookes Peters, General Counsel, and Parks H. Icenhour for State Highway and Public Works Commission."
    ],
    "corrections": "",
    "head_matter": "In the Matter of JOE SWINK.\n(Filed 9 November, 1955.)\n1. Criminal Law \u00a7 60a\u2014\nA 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.\n2. Same\u2014\nA commitment has no validity except that derived from the judgment, and to the extent it fails to set forth or certify the judgment accurately, the commitment is void and the judgment itself controls.\n3. Criminal Law \u00a7 62e\u2014\nWhere judgments appear on the minutes of the court in immediate succession and are consecutively numbered, a provision in a subsequent judgment that it should begin at the expiration of the sentence imposed in the preceding numbered judgment, is effective, tlie reference to the preceding numbered judgment being sufficient identification thereof.\n4. Same\u2014\nWhere a judgment provides that the sentence therein imposed is \u201cto begin at the expiration of existing sentences\u201d and it appears that the sentences the defendant was then serving were imposed in another court, the sentences run concurrently, since the provision in the later judgment that it was to begin at the expiration of existing sentences has no meaning apart from what may be disclosed by investigations and evidence dehors the record, and is, therefore, void for uncertainty.\n5. Same\u2014\nSentences imposed by different courts to the same place of confinement run concurrently in the absence of valid provisions in the judgments to the contrary.\n6. Same\u2014\nSentences imposed to different places of confinement do not run concurrently. Sentences in the present ease were imposed prior to the enactment of Chapter 57, Session Laws of 1955, and therefore this statute has no application thereto.\n7. Habeas Corpus \u00a7 7\u2014\nThe sole question for determination upon habeas corpus hearing for alleged unlawful imprisonment is whether petitioner is then being unlawfully deprived of his liberty, and when it appears that defendant had not completed prison sentence lawfully imposed under one of several judgments, order remanding the petitioner to custody to complete the serving of the sentence will be affirmed, but the order is modified by striking therefrom the computation by the court of the date petitioner would be eligible for release.\n8. Criminal Law \u00a7 63i\u2014\nWhere the Governor commutes a sentence \u201cfrom two years, four months, thirteen days to four years, four months and thirteen days\u201d the sentence, as commuted, remains an indeterminate sentence for the minimum and maximum terms stated therein, and 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. 148-13, G.S. 148-42.\nON writ of certiorari, to review the order of Williams, J., entered 12 January, 1955, in Raleigh, N. C., after hearing on return of writ of habeas corpus.\nJudgments imposing sentences were pronounced, in Rutherford County, Gates County and Hertford County. This Court, in its discretion, issued its writ of certiorari to clarify petitioner\u2019s status under these judgments and the status of others similarly situated.\nJudgments op RutheRpoed Supeeioe Court.\nOn 16 November, 1950, petitioner was before the court in three cases, #203, #204 and #205. In #203 and also in #204, petitioner tendered and the State accepted a plea of guilty of larceny of personal property of the value of less than $100.00. In #205, petitioner tendered and the State accepted a plea of guilty of malicious injury to personal property. Thereupon, the court pronounced separate judgments in the three cases, viz.:\nIn #203, the judgment pronounced was that \u201cthe defendant be confined in the common j ail of Rutherford County for a term of two years and assigned to the State Highway and Public Works Commission for the service of said term.\u201d In the commitment in #203, the judgment was certified correctly by the clerk.\nIn #204, the judgment pronounced was that \u201cthe defendant be confined in the common j ail of Rutherford County for a term of two years to be assigned to the State Highway and Public Works Commission for the service of said term.\u201d This judgment provided further: \u201cThis sentence to begin at the expiration of the sentence pronounced in #203, it being the purpose of the Court that these sentences shall not run concurrently but that one shall follow the other.\u201d\nIn the commitment in #204, the clerk certified that the judgment imposing sentence in that case was: \u201cJudgement (sic) of the court is that he be imprisoned in the county jail for the term of two (2) years to begin at expiration of sentence in \u00a7203 and assigned to work upon the public roads, and then be discharged according to law, said sentence to commence on (date) November 16, 1950.\u201d (Words in italics typed, others part of printed form.)\nIn #205, the sentence imposed by judgment pronounced was suspended upon specified conditions. This sentence, not having been put into effect, has no bearing on the questions here presented.\nJUDGMENTS OE GATES COUNTY CeIMINAL COUET.\nOn 22 January, 1952, in #249, petitioner pleaded guilty to wilful escape in violation of G.S. 148-45. Judgment pronounced was that \u201cdefendant to be confined to the common jail of Gates County for a term of four months, to be assigned to work the roads under the supervision of N. C. Highway and Public Works Commission. Sentence to begin at expiration of existing sentences.\u201d\nIn the commitment in #249, the clerk certified that the judgment imposing sentence in that case provided, in part, that \u201csaid sentence to commence on (date) at the expiration of sentence imposed in case \u00a7204 imposed in Superior Court, Rutherford County, November, 1950.\u201d (Words in italics typed, others part of printed form.)\nOn 26 February, 1952, in #292, petitioner pleaded guilty to wilful escape (a subsequent offense) in violation of G.S. 148-45. Judgment pronounced was that \u201cdefendant to be confined to the common jail of Gates County for a term of six months, to be assigned to work the roads under the supervision of N. C. Highway and Public Works Commission, to begin at expiration of existing sentence.\u201d\nIn the commitment in #292, the clerk certified that the judgment imposing sentence in that case provided, in part, that \u201csaid sentence to commence on (date) at the expiration of sentence imposed in case #249, imposed in County Court, Gates County, January 22, 1952.\u201d (Words in italics typed, others part of printed form.)\nJudgment in Gates SupbRIOR Court.\nAt March Term, 1952, in #205, upon conviction of larceny of an automobile, judgment pronounced was that \u201cdefendant to be confined to the State\u2019s Prison at Raleigh and assigned to work the roads under the supervision of the State Highway and Public Works Commission for a term of not less than two nor more than three years, sentence to begin at expiration of sentence now being served imposed in Case #292, County Criminal Court of Gates County.\u201d\nIn the commitment in #205, the clerk certified that the judgment imposing sentence in that case provided, in part, that \u201csaid sentence to commence at expiration of sentence imposed in case No. 292 in Gates County Criminal Court on Feb. 26, 1952.\u201d (Words in italics typed, others part of printed form.)\nJudgment in Hertford Superior Court.\nAt April Term, 1952, in #130, upon conviction of larceny of an automobile, judgment pronounced was \u201cthat the defendant Joe Swink be confined in the State\u2019s Prison for a term of not less than five (5) years nor more than seven (7) years, sentence to run concurrently with sentences he is now serving.\u201d In the commitment in #130, the judgment was correctly certified by the clerk.\nOn 12 January, 1955, upon return of writ of habeas corpus, Judge Williams held that the indeterminate prison sentences imposed by the judgment pronounced in Gates Superior Court and in Hertford Superior Court \u201ccommenced on December 2,1954, following the petitioner\u2019s completion of the last of a series of consecutive road sentences from Rutherford and Gates Counties\u201d; that the said prison sentences ran concurrently; and that petitioner \u201cwill be eligible for consideration for his release by Prison Authorities on or about June 24, 1958.\u201d Petitioner was remanded to the custody of the Warden of the State Prison pending completion of service of the said prison sentences.\nOn 24 May, 1955, upon return of another writ of habeas corpus, Judge Williams dismissed the writ, remanded petitioner to custody, for the reason that the matter had been fully adjudicated in his previous order of 12 January, 1955. A finding of fact in Judge Williams\u2019 order of 14 May, 1955, is that the judgment of the Hertford Superior Court imposing a prison sentence of not less than five nor more than seven years was commuted by the Governor of North Carolina on 4 May, 1955, to a prison sentence of \u201cfrom two years, four months, thirteen days to four years, four months and thirteen days.\"\nIt is noted that Judge Williams had before him only the commitments, which purported to contain true copies of the several judgments.\nBert M. Montague for petitioner, appellant.\nAttorney-General Rodman and Assistant Attorney-General Love for the State.\nR. Brookes Peters, General Counsel, and Parks H. Icenhour for State Highway and Public Works Commission."
  },
  "file_name": "0086-01",
  "first_page_order": 126,
  "last_page_order": 132
}