Opinion
Argued September 24, 1873
Decided September 30, 1873
J.H. Clute for the plaintiff in error.
N.C. Moak, district attorney, for the defendants in error.
The proceedings sought to be reviewed in this case were not authorized by any statute of this State nor by any precedent to which we have been referred. The cases, cited by the learned district attorney were all capital cases where, at the time of the recapture of the prisoner, the time appointed for the execution had passed and a new award of execution must be made by the court to render the original judgment effectual. ( King v. Okey, 1 Levinz, 61; Ratcliffe's Case, 18 Howell's State Trials, 430; Bland v. The State, 2 Ind., 608.) The mode of proceeding in cases where, for any reason, sentence of death is not executed at the time appointed, is now regulated in this State by statute (2 R.S., 659, §§ 23, 24; Laws of 1860, ch. 410, § 11; Laws of 1861, ch. 303; Laws of 1862, ch. 197, § 1); and the old common-law proceeding does not exist even in capital cases, excepting so far as it conforms to the statute. In cases where, before the expiration of a term of imprisonment, the prisoner escapes, no new award of execution is necessary or proper. The prisoner can be retaken at any time, and confined under the authority of the original judgment until his term of imprisonment has been accomplished. If the wrong person should be taken, or if the prisoner's term has in fact expired, he can obtain relief by habeas corpus. The course of proceeding adopted in the present case may have been a judicious way of satisfying the officers of the identity of the party, but we think it was extra-judicial, and would not conclude the prisoner on habeas corpus, neither is it reviewable on writ of error. The General Term should have quashed the writ.
The judgment of the General Term should be reversed, and judgment entered in the Supreme Court quashing the writ of error.
All concur.
Ordered accordingly.