Wray v. Kelly , 98 Miss. 172 ( 1910 )

Anderson, J.,

after stating the facts as above, delivered the opinion of the court.

It is contended on behalf of appellant, the sheriff and jailer of Bolivar county, that the presiding judge had the authority to make the order of July 13', 1910, for the removal by him of the prisoner to the Hinds county jail for safe keeping, and he is therefore entitled to his custody for that purpose; while the appellee, the sheriff and jailer of Warren county, contends that the judge exhausted his authority over the prisoner by the first order of removal, that the second order is void, and therefore he is entitled to the custody of the prisoner until the next term of court, when he is to be delivered up to the sheriff and jailer of Bolivar county for trial.

The question for decision involves the construction of sections 1476 and 1477, Code 1096. By section 1476 the trial judge was expressly given authority, for the safe keeping of the prisoner or “on the ground of public policy,” to make the order for his removal to Warren county. It provides that, when so removed, “he is there to be kept until the court shall sit for the trial of the offender; and it shall be the duty of the sheriff of the county to which the prisoner is so removed, to receive and safely keep him, according' to the order of the court or officer having jurisdiction thereof.” Section 1477 provides that a person in custody on a criminal charge “shall not be removed from the place of his confinement into the custody of another officer,” except' for trial, habeas corpus, or some other legal writ, in case of “infection, or other necessity, or in accordance with express provision of law. ’ ’ The predominant idea of the statute is the safe keeping of the prisoner, which must be kept in mind in determining the meaning of the provision in section 1476, “there to be kept until the court shall sit for the trial of the offender, and it shall be the duty of the sheriff of the county to which the prisoner is so removed, to receive and safely keep him, according to the order of the court or officer having jurisdiction thereof;” and this language must be construed in connection with the provisions of section 1477, which apply as well to a prisoner removed to the jail of another county under section 1476, as to one in custody in the county where he stands for trial, and recognize the authority to remove such prisoner by habeas corpiis, or other legal writ, “or in case of fire or infection or other ■necessity, or in accordance with express provisions of law.” Where language used in a statute is capable of more than one meaning, the purpose of the legislature, ■as gathered from all of its provisions, must control, and words may be substituted, and the policy of the legislation may be considered, in order to carry out this purpose. The words must be interpreted in reference to the subject-matter of the statute. 26- Am. & Eng. Ency. •of Law (2d Ed.), pp. 602, 603, and 604. Looking at this ■statute from its four corners, the evident purpose of the legislature was to give the trial judge authority to provide for the safety of the prisoner, by removal from the .jail of. one county to another, as often as necessary to •accomplish that purpose, and wherein the language falls short of accomplishing that end it is supplied by construction. The making of one order of removal does not exhaust the authority of the judge to provide for the safety of the prisoner in future. It is not the limit of his authority, for, if it were, the whole purpose of the statute in some instances would be thwarted; for there might be a much greater reason for a second or third removal than for the first one. The statute does not confer on the prisoner the right to occupy one jail- in preference to another.

It is contended, for appellee, that the writ of habeas corpus does not lie in a ease of this kind. Section 2445-, Code 1906, provides that the writ ‘ ‘ shall extend to all •cases of illegal confinement or detention by which any person is deprived of his liberty, or by which the rightful custody of any person is withheld from the person entitled thereto except in cases expressly excepted.” The instant case comes clearly within the provisions of this statute. There is no other proceeding known to the law to which the appellant could resort to recover the custody of this prisoner from the appellee.

Reversed, and judgment here for appellant.