People ex rel. Uebelmesser v. Carter

Jenks, P. J.:

The sole question is whether the Parole Board must count the 87 days that intervened May 19, 1915, and August 14, 1915, as part of the term of relator’s sentence. The period could not be considered by the Parole Board as part of the term of the convict’s sentence, because he was not during that period incarcerated in the State prison, the place prescribed by the sentence. Section 232 of article 9 of the Prison Law (Consol. Laws, chap. 43; Laws of 1909, chap. 47), relating to commutations, prescribes: “For the purpose of this article the term of imprisonment of each convict shall begin on the date of his or her actual incarceration in a State prison or penitentiary.” ‘‘Expiration of time without imprisonment is in no sense an execution of sentence.” {Dolan’s Case, 101 Mass. 219, 223.) The detention of the relator in the Tombs, even against his will, so that he could not serve that period as of a term prescribed by law, was not an imprisonment prescribed by law. Such detention was an incident, and the principle that applies is no different than if the convict, during that period, had been at large unlawfully. Nor is the case now presented affected by the fact that the convict had begun his term, of sentence in the State prison, and the 87 days were subsequent to that time. For section 531 of the Code of Criminal Procedure provides: “ If, before the granting of the certificate, the execution of the judgment have commenced, the further execution thereof is suspended, and the defendant must be restored by the officer in whose custody he is, to his original custody.”

An unreasonable detention of the convict in the Tombs might well be determined in a proper proceeding as unlawful or illegal. (See Matter of King, 82 Ala. 59; O’Neil v. State, 134 id. 189.) But it is not germane to this appeal to consider what remedies were open to the relator, whether mandamus, habeas corpus or a motion to punish the officer who detained him in the Tombs as for a contempt, or whether the relator would have remedy upon the case against his oppressor. Although the detention cannot be considered by the Parole Board, it might well be ground for appeal to the Executive clemency so that the time thereof could be taken into consideration as if it had been passed in the State prison.

The order is reversed, without costs, and the motion is denied, without costs.

Thomas, Mills, Rich and Putnam, JJ., concurred.

Order reversed, without costs, and motion, denied, without costs.