Summary
In Thompson v. Patterson, Supervisor, 201 S.C. 221, 22 S.E.2d 590, 591, the Court was called upon to construe a statute which directed that a certain part of any sentence be "deducted at the end thereof for good behavior."
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15457
October 31, 1942.
Before G.B. GREENE, J., Anderson County, July, 1942. Affirmed.
Mary Thompson commenced the service upon the roads of Anderson County, in the custody of the respondent, the supervisor of Anderson County, of a sentence of the Court of General Sessions for said county. This sentence was for a period of one year, but provided that, upon the service of six months, the remainder of the sentence should be suspended during good behavior. The offense for which sentence was imposed was a first offense insofar as was contemplated in the statute providing for "time off for good behaviour." The appellant's behavior while serving sentence was good. After serving seventy per cent. of the six months required to be served by the sentence, she sought release through Habeas Corpus upon the ground that she was entitled to thirty per cent. of the six months as a credit on her service and was entitled to be released. Judge Greene denied her petition and in his order thereon held that she was required to serve the entire six months. From this judgment Mary Thompson appeals.
The order of Judge Greene, adopted as the opinion of the Court, follows:
The matter comes before me upon petition of Mary Thompson for a writ of habeas corpus and an order for the release of petitioner from the custody of the supervisor of said county.
The facts which are undisputed are as follows: The petitioner is being held and confined upon the public works of this county by the supervisor under and by virtue of a sentence, and a commitment issued thereunder, imposed by the presiding Judge of the Court of General Sessions for said county during the February, 1942, term of said Court. The said sentence is as follows: "Let the defendant Mary Thompson be confined to hard labor upon the public works of Anderson County or in the State Penitentiary for a period of one (1) year: Provided that upon the service of six months, the balance of this sentence shall be suspended during good behavior."
On March 3, 1942, petitioner commenced the service of said sentence and has been ever since in the custody of said supervisor as a prisoner by virtue thereof. Petitioner has during such service been of good behavior. That the offense for which said sentence was imposed is a first offense in so far as its application to the statute providing "time off for good behavior."
Petitioner contends that she is entitled to be discharged as a prisoner, she having served the six months provided in said sentence, less thirty per cent thereof for good behavior. The supervisor takes the position that she should serve the entire six months provided in the sentence without any deduction for good behavior. These two positions result into a single question, to wit: In cases where sentence provides for service of part of the time and balance suspended on good behavior, when should credit be given for good behavior? At the completion of the service of the part time to be served or at the time when the sentence in its entirety is complied with?
Section 1578, Code of Laws, 1932, as amended by Act 328 of the Acts of 1935 and Act 916 of the Acts of 1938, is as follows:
"Any person, now or hereafter serving a sentence imposed by any court of competent jurisdiction * * * shall be entitled to have one-fifth of such sentence deducted at the end thereof for good behavior, and in case any such person has not theretofore been adjudged guilty of any crime against the laws of this State, or any other State in this Union, or of the United States, in lieu of a credit of one-fifth of such sentence, he shall be entitled to have a credit of thirty (30%) per cent of such sentence deducted at the and thereof for good behavior.
"Any officer having charge of such convict, who shall * * * Provided, Further, That the provisions of this Section shall also apply to persons whose sentences have been commuted, and in computing the time to be credited on the sentence as commuted, the basis shall be on the record of the prisoner from the date of commutation."
As shown by dashes above portions of the section which would serve no purpose in quoting are omitted.
The section before amended and as contained in the 1932 Code carried the words "one-tenth of such sentence deducted at the end thereof for good behavior." Then by Act No. 328 in 1935, "one-tenth" was stricken out and "one-fifth" inserted in lieu thereof. The words "at the end thereof" were not disturbed. Then in 1938, by Act 916, the section was further amended by adding that portion which provides for a credit of thirty per cent. Not only were the said words "at the end thereof" again left undisturbed but the provision regarding the thirty per cent. credit also carried the words "at the end thereof." It must be concluded that the legislature positively intended that any deduction be made at the end of the sentence. Mary Thompson was sentenced for a period of twelve months, and although only six months were necessarily to be served, the balance being suspended on good behavior, the end of the sentence is not when the six months are served, but at such time that the sentence in its entirety is satisfied. If petitioner's contention that credit for good behavior should be given upon completion of the service of six months were correct, then time off for good behavior would be deducted before and not at the end of the sentence. In my opinion this would be contrary to the statute.
It is noticeable that the provision for good time off on commuted sentences was added after the printing of the 1932 Code. If the legislature desired that credit for good behavior be credited on the served portions of suspended sentences, it would have made proper provisions for same at the time of providing for commuted sentences.
The petitioner is not entitled to deduction for good behavior until at the end of her sentence; the end of her sentence will not be until twelve months from the commencement of the service of same.
It is therefore ordered and adjudged that the petition be and the same is hereby dismissed and the petitioner is hereby remanded to the custody of said supervisor to the end that she serve the remainder of the six months provided in said sentence.
Mr. J. Alex Neely, of Anderson, Counsel for Appellant, cites: As to effective portion of sentence, one-half of which is suspended during good behavior: Code of 1932, Sect. 1578; 123 S.C. 36; 50 C.J., 346, 349; Code of 1932, Sect. 1039; 41 L.R.A. (N.S.), 144; Blackstone, Bk. 4, p. 375 63 N.J.L., 105, 116, 12 A., 155, 57 L.R.A., 312; 59 Ga. 800, 802; 31 Ohio St., 206, 207; 43 Ohio St., 629, 651, 4 N.E., 81; Bouv. L. Dict. ( 43 Ohio St., 629, 4 N.E., 81.)
Mr. Rufus Fant, Solicitor, of Anderson, Counsel for the State. Respondent, cites: As to effective portion of sentence, one-half of which is suspended during good behavior: Sect. 1578. Code of 1932; 108 S.C. 455, 95 S.E., 69; Act No. 562, Acts of 1941, Sect. 13; Act No. 305, Acts of 1935; 123 S.C. 28, 115 S.E., 760, 28 A.L.R., 940; Penal Code of Georgia, Sect. 1176 (Ga.), 137 S.E., 919, 170 Ga. 632, 153 S.E., 762; 50 C.J., 348, Sect. 46.
October 31, 1942.
Being satisfied that the order of Honorable G.B. Greene, Circuit Judge, properly decided the only issue involved, we hereby direct that his order be published as the opinion of this Court.
The exceptions are overruled, and the judgment is affirmed.