Ex parte Bell

Chalmeks, J.,

delivered the opinion of the court.

On April 13, 1877, Isaiah Bell was convicted, in the Circuit Court of Chickasaw County, of assault and battery, with intent to kill and murder, and sentenced to be imprisoned in the State penitentiary for the period of one year from said date. He at once entered into a recognizance, in open court, to appear in the Supreme Court, and there abide such decision as might be rendered, and was thereupon discharged. Subsequently, a transcript of the record of his trial and conviction was made out and sent here, unaccompanied by any petition for writ of error or appeal, or any bond. The written petition for appeal or writ of error being essential; in criminal cases, to give this court jurisdiction, and there being nothing whatever in the transcript sent to us to suggest that the party had prosecuted or desired a review of the case here, it was by this court stricken from the docket on the 15th of January, 1878.

Thereupon, at the suggestion of the attorney-general, Isaiah Bell was arrested by the sheriff of Chickasaw County, and incarcerated in jail; but nine months of the year for which he had been sentenced to the penitentiary had in the meantime expired, during which he had been at large on the recognizance entered into before the Circuit Court.

He remained in jail until the full twelve months had expired, and then sued out this writ of habeas corpus, asking to be discharged upon the ground that his term of confinement had expired, though, in point of fact, he had never been in the penitentiary at all. The .chancellor before whom he was brought having refused to discharge him, he brings this appeal here.

The relator was properly arrested by the sheriff after the case was stricken from the docket here. Indeed, he ought *285 never to have been discharged upon the recognizance taken in the Circuit Court.

That recognizance was wholly unauthorized, and was a mere nullity. The only valid bond for appearance in this court which a convict can give is that provided by sect. 2842 of the Code of 1871, which must accompany the written petition for writ of error or appeal. The relator, therefore, during all the time that he was at large, was simply an escaped convict, and was properly rearrested as such.

Is he now entitled to be discharged because the twelve months for which he was originally sentenced has expired? By no means.

The date fixed by a sentence for the punishment to commence, or to be inflicted, is directory merely, and forms no part of the sentence itself, as has been uniformly held from the earliest times. Hence, if from any cause it is not carried into effect at the period named, the party may be brought before the court again upon motion, and a new period be prescribed. There are frequent instances in the books where men have been sentenced to be hung upon a day named, who have escaped before the time arrived, and been absent for years, but who, when finally arrested, have been, by a new order of court, executed under the old sentence. Our statute on that subject (Code 1871, sect. 2820,) is simply declaratory of the common law. So, also, where the punishment is imprisonment for a certain term, and from any cause the time elapses without the imprisonment being endured, the convict can be brought before the court at a subsequent term, and a new date specified at which the term shall begin.

Such will be the duty of the Circuit Court of Chickasaw County in this case. Bishop’s Cr. Proc., sects. 878, 879; The State v. Cockerham, 2 Ired. 204 ; Russell v. The Commonwealth, 7 Serg. & R. 489; Atkynson v. Rex, 3 Bro. P. C. 517; The State v. Kitchen, 2 Hill (S. C.), 612; Bland v. The State, 2 Ind. 608 .

Judgment affirmed.