Schanbacher's Case

Per Curiam,

Whether the appellant had been “in actual confinement” for three months before presenting his application was a question of fact. The appeal operates only as a certiorari, and does not bring up the evidence. Therefore the court’s decision of that question of fact must be taken as conclusive, unless it appears that it was based on an erroneous construction of the words of the statute: “actual confinement, in pursuance of such sentence for a period of not less than three months.” But the opinion filed by the learned judge shows quite clearly that the construction of those words upon which he proceeded was right. The words are plain and unambiguous. To strike out the word “actual” or substitute for it the word “constructive,” as must be done to sustain this appeal, would be to amend, not to construe. Upon the facts found by the learned judge, he was clearly right in dismissing the petition and refusing the discharge, for the reason that the petitioner had not been in “actual confinement for the required period.” Nothing need be added to what he has said as to the meaning of the statute. What the learned judge said as to the merits of the case, in the latter part of his opinion, was merely supplementary, and not necessary to the decision. It is quite apparent that the decision was not based upon those considerations, but upon the facts found by him and the construction of the statute to which we have referred.

The assignments of error are overruled, and the judgment is affirmed.