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    Henderson v. James, Warden.

      Escaped convict — Sentenced for another crime — Must serve out first sentence — Habeas corpus — May be reviewed by higher court— Section 6725, Rev. Stat.

    1. An escaped convict who is convicted and sentenced to the penitentiary for another crime, may, at the expiration of the latter sentence, be held to serve out the remainder of his first sentence.
    2. A final order of discharge on habeas corpus, may be reviewed and reversed on error, by a higher court.
    3. In such case the order of discharge may be stayed by the higher court, under section 6725, without fixing any terms, other than the stay of the execution of the order.
    (Decided February 5, 1895.)
    Error to the Circuit Court of Franklin county.
    On September 18, 1879, the plaintiff in error, David Henderson, was received at the penitentiary to serve a five years’ sentence from Warren county. On October 12, 1881, after serving a little over two years of that sentence, he escaped and was at large until March 16, 1891, when he was received at the penitentiary under the name of Carrol Scott, on a five years’ sentence from Cuyahoga county, but nothing was known by the Cuyahoga county court as to the prisoner’s real name being’ David Henderson, nor as to his former sentence, nor as to his escape. When he reached the penitentiary he was received and put to work as Carrol Scott, without being recognized as David Henderson by the warden. After he had been there some time, registered and working as Scott, the deputy warden recognized him as being David Henderson, but no action was taken by the warden or any one else upon such recognition, and the prisoner served out his sentence as Carrol Scott, and was discharged July 14, 1894. The warden having learned that Scott was Henderson, detained him as the escaped Henderson, and duly registered him. as the returned convict, and put him to work to serve- out his unexpired sen-, tenee.
    Thereupon David Henderson filed his petition for a writ of hateas corpus, the warden made due return, and the plaintiff replied. The reply is in effect that within a week after he was received at the penitentiary as Scott, he was recognized as the escaped convict, Henderson, by the deputy warden, who was then, in the absence of the warden, in charge of the prison. To this reply the warden demurred, which demurrer was overruled by the court of common pleas of Franklin county, and on hearing the case, the prisoner was ordered to be discharged. Exceptions were taken by counsel for the warden, and on hearing the case in the circuit court on petition in error the judgement of the court of common pleas, discharging the prisoner, was reversed, and the prisoner remanded to the custody of the warden to serve out his unexpired sentence.
    Thereupon Mr. Henderson filed his petition in error in this court to reverse the judgement of the circuit court, and for the affirmance of the judgment of the common pleas.

      James A. Allen and George B. Okey, for plaintiff in error.

      I. We maintain the circuit court erred in ordering’ a stay of the order of discharg-e granted by the common pleas court. Section 5741, Revised Statutes. Section 6725, Revised Statutes, does not apply to such final order as was g’ranted in this case. The court could have no terms to prescribe. The chapter of habeas corpus is a code of procedure separate and distinct from any other, and is complete in itself. It is as distinct as the chapter on criminal procedure. No one would argue that section 6725 would apply to a final order of a court discharging a person in a criminal action; yet, the languag’e of the section is broad enough, to include such final order.
    Section 5751, Revised Statutes, provides, that proceedings upon a writ of habeas coipus may be reviewed on error as in other cases. Proceedings in criminal cases, in which the prisoner is discharged, may be reviewed on error for the purpose of determining questions of law. Under this rule, the state would have no right to insist that section 6725 would give the courts authority to stay such an order of discharge until the higher courts could have the questions of law determined.
    There is no statute in, this state providing' for a stay of order of discharge in habeas corpus proceedings. It may be argued that this is in the nature of a civil proceeding and therefore section 6725 will apply. It may be a civil proceeding, but it is a department by itself having rules and regulations governing its peculiar civil nature. It is a scheme of civil procedure different from other civil cases. Instead of filing an answer, a return is filed. There is no right to a trial by jury, and because the action is in its nature a'civil one, that is no answer that section 6725 must apply.
    There being no statutory provision in our state on this question, a judgment discharging a prisoner in habeas corpus proceeding, whether erroneous or not, and as being in favor of personal liberty, must be regarded as final and conclusive. 1 Freeman on Judgments, section 324, p. 587; 9 Am. & Eng. Ency. of Law, 238; 64 Mo., 205; 3 Utah, 183; 2 Brewster (Pa.), 545.
    II. The circuit court had no power under that state of facts before it to remand the prisoner to the custody of the warden after he had been discharged by a tribunal having jurisdiction. If our first proposition be sound, and had the circuit court, accordingly, refused to order a stay'of the order of discharge and the prisoner had been released, he could not have been rearrested after that court had determined the ruling and order of the court below to be" erroneous.
    The judicial discharge of a prisoner upon habeas corpus conclusively settles that he was not liable to be held in custody upon the then existing state of facts. 1 Freeman on Judgments, section 324; 3 Utah, 183; 9 Am. & Eng. Ency. of Law, 238; 27 Am. Rep., 218.
    III. The circuit court erred in reversing the judgment and order of the common pleas court.
    The question under consideration, is a new one in this country as well as in this state. • David Henderson was convicted of- a crime and sentenced for five years from Warren county; part of this sentence he did not serve. Ten years after his escape, the same person, under the name of Carroll Scott, was convicted of a different crime and sentenced for five years; nothing was said or done by the court as to that part of the former sentence which was not served. When did this last sentence commence to run? And when the same person under a different name entered the penitentiary to serve the last sentence, what effect, if any, in contemplation of law, did it have upon the unexpired part of the first term.
    David Henderson and Carroll Scott are one and the same person. The name has nothing to do with the punishment; the person only is affected. Hence, what affected David Henderson also affected Carroll Scott. A name cannot commit crime; it has no soul or body. It cannot act, and therefore cannot' be sentenced or punished. The punishment of Carroll Scott is the punishment of David Henderson. The same person suffers under either name at one time or at different times.
    The indictment against the person of Henderson affected in the same manner the person of Carroll Scott. The name has no substance and therefore cannot be indicted, tried, convicted or punished. Lasure v. State, 19 Ohio St., 50; Mead v. State, 26 Ohio St., 505.
    This proposition being- established, then, when Carroll Scott was received at the penitentiary to serve the Cuyahoga county sentence, David Henderson at the same time entered the penitentiary, and having a part of a term to serve commenced at that moment upon its execution. No power chang-ed, modified or in any manner affected the David Henderson sentence. His presence worked a satisfaction of that sentence. It could not be suspended or modified at that time by any power. Carroll Scott at the same time commenced to serve out his sentence because the Cuyahoga county court so ordered.
    The doctrine is settled in Ohio that the term of imprisonment imposed by a court of this state having jurisdiction may be made to begin upon the expiration of another term of imprisonment but it must be definite and certain. Pickets v. State, 22 Ohio St., 405; Williams v. State, 18 Ohio St., 46.
    It is also a settled doctrine that a sentence of a court imposed upon a prisoner on conviction begins in the present unless it is controlled by a statute, or by the court in the sentence imposed. We have no such statute in this state. The court in its sentence did not suspend its operation and it therefore took effect immediately. Time runs against a prisoner’s sentence from the time he is imprisoned. Time commenced to run against the Cuyahoga county sentence at the moment Scott entered the penitentiary. At the same time the person of Scott under the name of Henderson had an unexpired sentence of Warren county to serve. Time 'commenced to run concurrently against . both of these sentences, and when the prisoner satisfied the Cuyahoga county sentence, which he did on July 14, 1894, and it being longer than the unexpired term of the Warren county sentence, he therefore satisfied both sentences.
    When there is no statute providing for cumulative sentences, the common law rule will prevail, which is laid down by the various courts to be that when there are several convictions and several terms of imprisonments adjudged, the terms run concurrently. 11 Ind., 389; 74 Ind., 89; Ex parte Myers, 44 Mo., 279; Ex parte Manyx, 74 Ill., 20; Ex parte Hunt, 28 Tex. App., 361; 21 Am. & Eng. Ency. of Law, 1075; 9 Am. & Eng. Ency. of Law, 232.
    Section 7325, Revised Statutes, provides: * * * “And if any convict escapes from the penitentiary, or reform school for boys, no part of the time such convict is absent shall be counted as a part of the time for which such convict is sentenced. ’ ’
    When Carroll Scott entered the penitentiary to serve his five years’ sentence from Cuyahoga county, David Henderson, the escaped person, after such return, was present, and in the custody of the warden, and not 1 ‘ absent ’ ’ from the penitentiary.
    The Carroll Scott, when he arrived at the penitentiary to serve his Cuyahoga county sentence, was recognized as the escaped David Henderson. There was no authority, either by statute oiV/Common law, vested in the warden of the penitentiary to arbitrarily postpone the time at which the unexpired portion of the Warren county sentence should begin to run until after the expiration of the Cuyahoga county sentence. No such power is given to any person or tribunal.
    The warden has arbitrarily assumed a power which the circuit court has by its judgment sanctioned, and which we claim is wrong, unjust and unlawful.

      J. K. Richards, Attorney-General, for defendant in error.
    I. . By no shift or device can a criminal escape the full punishment for his crimes under the laws of Ohio. There is only one way in which the sentence of the law can be satisfied, and that is by the actual suffering of the punishment imposed, unless remitted by death or by some legal authority. It is not so essential when punishment shall be inflicted, as it is essential what kind of punishment and the amount of punishment, fixed by the law and the court for the crime committed, shall be inflicted; and especially that a criminal shall know that he cannot escape the full punishment of one crime by escaping and committing a new crime. Dolan’s Case, 101 Mass., 219; Clifford v. Maryland, 3 Md., 575.
    It was insisted in this case, that because the prisoner was sentenced to “serve and labor in the penitentiary for the period of ten years,” without the time for the commencement of the term being fixed', the judgment was void. But the court took the view, that since the statute required the prisoner to be taken by the sheriff to the penitentiary as soon as possible after conviction, and required the warden to keep a register of the convicts, there could be no uncertainty as to the commencement or termination of the term. Section7407, Revised Statutes; Holland v. Hopkins, 21 Kans., 638.
    Counsel for plaintiff in error cites a number of cases in which it has been held that where several sentences were imposed by the same court, and no time was fixed for the commencement of the several terms, they all were held to begin at the same time and run concurrently. This is true, and it is based on the fact that where one court convicts a man of several crimes, and for each sentences him to a term of imprisonment, without stating when the several terms are to begin, there is no other authority competent to discriminate between the several terms and say that one term shall begin now and another term begin at the end of this one; and since the warden cannot say which term begins now and which term begins later, all the terms must be held to begin upon the receipt of the convict.
    But what has this to do with the case at bar? Is there any doubt about the fact that Scott began to serve his term on the 16th of March, 1891, and continued to serve that term until he was discharged? The records of the prison show that,- and only that. For the purpose of satisfying the judgment of the Cuyahoga court, this man was Scott. After he was released as Scott, then the warden had power, and it became his duty under section 7407, to arrest this man as the escaped convict, Henderson, which he did. After such arrest the man was entered upon the register as Henderson, and began to serve and is serving- the balance of Henderson’s term. There is no doubt or uncertainty as to the term of' imprisonment he owes the state under the judgment of these two courts; so the cases as to cumulative sentences by the same court and concurrent terms, do not in any way apply to this case.
    But it is urged that the authority for detaining- Henderson is found in the concluding-paragraph of section 7325, which reads: “And if any convict escapes from the penitentiary * * * no part of the time such convict is absent shall be counted as a part of the time for which such convict was sentenced;” and the point is made, that section 7235 excludes from the time to be counted as a part of the sentence served, only the time when the person or.individual is absent from the penitentiary, and that since Scott was the same person as Henderson, and since Scott has been in the penitentiary for a longer time than the unexpired portion of Henderson’s sentence, therefore, there remains no part of Henderson’s sentence yet to be served. This argument ignores the word “convict,” as used in section 7325, and substitutes for that word the word “person,” or “individual. ’ ’ But the statute says, that if any convict escape, no part of the time such convict is absent shall be counted as time served on his sentence. Now, while Scott was the same person or individual as Henderson, he was not the same convict. It was not possible for Scott, while serving the sentence of one court, to be at the same time Henderson, and as Henderson serve the sentence of another court.
    II. The brief of the petitioner assumes that the warden knew, at the time he received Scott from the sheriff of Cuyahog’a county, that he was an escaped convict. There is no testimony to sustain this. That the secret, unexpressed, unrecorded mental action of a deputy warden can nullify the sentence of a court and absolve a criminal from punishment, is absurd and ridiculous.
    The Cuyahoga sentence was a clean cut sentence to take effect in prcesenpi. Under section 7330, when the sheriff of Cuyahoga coimty arrived at the penitentiary with Scott and delivered him into the custody of the warden with the copy of the sentence of the court which has convicted him, it was the duty of the warden to receive him and to safely keep him until the term of his confinement as defined in the sentence of the Cuyahoga court should have expired. The warden could not have taken Scott from the custody of the sheriff of Cuyahoga county, and from the jurisdiction of the court of which that sheriff was the ministerial officer, put him to work as the escaped convict, Henderson, thus nullifying the judgment and sentence of the Cuyahoga court. Neither could the warden receive the convict Scott, as Scott, from the sheriff of Cuyahoga county, and then postpone the execution of the sentence and judgment of the Cuyahoga court until Henderson should have served his unexpired term.
    Upon the point that a sentence must be definite and certain, and cannot be altered or postponed at the pleasure of the warden of the penitentiary, I refer the court to the cases of Williams v. State, 18 Ohio St., 46; Pickett v. State, 22 Ohio St., 410.
    The argument just made goes to the duty of the warden in view of the judgment and sentence of the Cuyahoga court, wholly irrespective of whether Scott was recognized as Henderson upon his receipt at the penitentiary or not.
    III. It is insisted that the decision of the court of common pleas discharging the prisoner was final, and that- no proceedings in error lie under the Ohio statutes regulating habeas corpus, to reverse an order of discharge; that no proceedings in error lie which can have the effect of correcting a palpably erroneous holding of a lower court, discharging him from service of a just punishment.
    But where the statute or code of a state provides for proceedings in error to correct an erroneous holding of a lower court in a habeas corpus case, then obviously the judgment of a lower court cannot be said to be final and conclusive; otherwise, what is the use of the proceeding’ in error ? In states where the statute regulating- proceedings in habeas corpus are similar to ours, it has been held that error does lie to reverse and correct the judgment of a lower court. People ex rel. v. Liscomb, 60 N. Y.,559; Ex parte La Fonta, 2 Robinson (La.), 495; Lark v. George, 55 Ga., 435; McCready v. Wilcox, 33 Conn., 321; Smith v. State, 21 Neb., 552; 2 Spelling Extra. Relief, sections 1356, 1358.
    In Ohio, chapter 8 of division 7, title I, being sections 5726 and 5753, governs proceeding's upon a writ of habeas corpus; prescribes the nature of the application, provides when the writ shall and shall not be granted, sets out the form of the return, and, in brief, regulates the proceedings before the original j udge or court:
    The distinctions between the proceedings on the writ and proceedings in error is clearly drawn in-ex parte James Collier, 6 Ohio St., 55.
    Upon the point that proceedings in habeas corpus are of a civil nature, I refer the court also to the case of ex parte Tom Tong, 108 U. S., 556. In this case it was held that in order to give the Supreme Court revisory jurisdiction, the statutes regulating civil proceedings in respect to the certificate of division of opinion of the judges, must be followed. Kline v. Kline, 57 Iowa, 386; Bonnett v. Bonnett, 51 Iowa, 199.
    IV. The authority for the action of the circuit court in staying the judgment and order of discharge made by the common pleas, is found in section 6725.
    The judgments and final orders to which this section does not apply are those enumerated in sections 6718 and 6724.
    The broad scope of section 6725 is described by this court in Building Association v. Insurance Co., 34 Ohio St., 291.

      As to the judgment and order of the common pleas in this case, there can be no question but that it was a final order. Ex parte Collier, 6 Ohio St., 55; Teaff v. Hewitt, 1 Ohio St., 511.
    But, of course, section 5751, which provides that proceedings in habeas corpus ‘ may be reviewed on error as in other cases,” recognizes the order and judgment of discharge, or the remanding of the prisoner, as a final order ; for such order and judgment is the purpose and end of the proceedings upon the writ.
   Burket, J.

The latter part of section 7325, Revised Statutes, provides that “if any convict escape from the penitentiary, * * * * no part of the time such convict is absent shall be counted as a part of the time for which such convict was sentenced.”

The plaintiff in error claims, that as his sentence in Cuyahoga county was not made to begin in the future, that,his imprisonment under that sentence began at once upon his arrival at the penitentiary, and that by virtue of the above section, his imprisonment, under the Warren county sentence, ag’ain began to run immediately upon his return to the penitentiary, so that-both sentences were being served at the same time, and that upon the expiration of the longer sentence, he was entitled to his discharge from both sentences. There was no attempt to invoke the doctrine of cumulative sentences, and the prisoner was sentenced to five years without knowledge on part of the court, that he was an escaped convict.

•As we have no statute authorizing cumulative sentences for crime, it would seem at first blush, that such sentences should not be permitted in this state; hut this court, with the courts of most of the other states, as well as England, has sustained cumulative sentences without the aid of a statute. Williams v. State, 18 Ohio St., 46; Picket v. State, 22 Ohio St., 405; Larney v. Cleveland, 34 Ohio St., 599; Bishop’s Criminal Law, section 953; Rex v. Wilkes, 4 Burr., 2575; State v. Smith, 5 Day (Conn.), 175; Fitzpatrick v. People, 98 Ill., 269; Mims v. State, 26 Minn., 498; Mills v. Com., 13 Pa. St., 631; Russell v. Com., 7 S. & R. (Pa.), 489; Petition of McCormick, 24 Wis., 492; Kite v. Com., 11 Met. 581. In Texas, Indiana and Kentucky, the courts hold cumulative sentences unauthorized. In Indiana there is a statute to the effect, that the term of service shall commence on the day of conviction and sentence, See Kennedy v. Howard, 74 Ind., 87; Prince v. State, 44 Tex., 480; Hannahan v. State, 7 Tex. App., 664, and Baker v. State, 11 Tex. App., 262, and James v. Ward, 2 Met. (Ky.), 271.

The great weight of authority is m favor of cumulative sentences, and they should be upheld on principle. The severe punishments which induced judges to invent technicalities to aid the acquittal of those on trial, on criminal charges, no longer exist, and under our just and humane statutes, those who violate the law should be duly punished for each offense. Tilgham, C. J., in Russell v. The Commonwealth, 7 S. & R. 489, well says: “But to consider the thing on principle; where a man has been sentenced to imprisonment for one offense, and is afterward convicted of another, what can be so proper as to make his imprisonment for the second offense, commence at the expiration of the first imprisonment. Would it not be absurd, to make one imprisonment, a punishment for two offenses? Nay the absurdity does not end there, for unless imprisonment for the last offense is to begin where the imprisonment for the first ends, it would be impossible, under our system, to punish the offender, in certain cases, for the last offense, at all.”

But as there was no attempt to impose a cumulative sentence in this case, it might be said that, the doctrine of the cumulative sentences is not involved in this case. It has been argued at length and in one phase of the ease it is pertinent.

Had the court known that the prisoner on trial was the escaped convict, Henderson, the court might, on proper proof of that fact, have sentenced him to five years service in the penitentiary, and ordered him to be delivered to the warden, and fixed his term of service to begin at the expiration of the Warren county sentence. The power of the court to do this, in the absence of any statute, seems clear from the cases above cited.

Again, had the court known that the prisoner under indictment in Cuyahoga county, was the escaped convict Henderson, the warden of the penitentiary might have been notified and the convict returned to the penitentiary to serve out his Warren county sentence. Being then in the penitentiary under a sentence from one county and under indictment for another crime in another county, section 7234, Revised Statutes, would have been applicable, and under that section he could have been taken from the penitentiary to Cuyahoga county, and tried under the indictment pending against him there, and upon conviction he could have been sentenced to the penitentiary, and returned thereto under section 7238, Revised Statutes, to serve out the full term of both sentences. Sections 7234 and 7238, are as follows :

“7234. A convict in the penitentiary who escaped or forfeited his recognizance before receiving sentence for a felony of which he was convicted, or against whom an indictment for felony is pending, may be removed to the county in which such conviction was had, or such indictment is pending, for sentence or trial, upon the warrant of the court of such countjr; but this section shall not extend to the removal of a convict for life, except the sentence to be imposed, or the indictment pending against him, is for murder in the first degree. ’ ’
“7238. If such convict be acquitted, he shall be forthwith returned by the sheriff to the penitentiary, there to serve out the remainder of bis term; but if he be sentenced to imprisonment in the penitentiary, he shall forthwith be returned thereto by the sheriff, and his term of imprisonment thereon shall begin' to run from the expiration of the term for which he was imprisoned at his removal; or, if he be sentenced to death, such sentence shall be executed as if he were not under sentence of imprisonment in the penitentiary.”

These two sections clearly show the legislative intent, that convicts shall serve out one sentence for each offense of which they are convicted and sentenced. It is therefore clear, from these two sections, and the decisions of this court sustaining cumulative sentences, that the service under the Cuyahoga county sentence, could apply on that sentence only, and that after having- served out that sentence, he still remained an escaped convict under the Warren county sentence, subject to be held to serve out the remainder of that sentence.

As he concealed his true name and identity, and was sentenced by the name of Scott, his term to begin in praesenH, the warden was bound to receive and treat him as designated in the record, and even had the warden recognized him at first sight, as being the escaped convict Henderson, he would have been powerless to treat him as such, so long as the sentence from Cuyahoga county remained in force and unsatisfied. Both the warden and the prisoner were conclusively bound by the ■record and sentence in that case.

While for many purposes there is nothing in a mere name, yet for many other purposes a name is Very important. The plea of abatement by reason of a wrong name, and the disclosure of a true name, is a very valuable protection to the prisoner, as in case of a second prosecution for the same crime, he can’ with more force invoke the record of the first case in support of his plea of former acquittal or conviction. Lasure v. State, 16 Ohio St., 51.

In Mead v. State, 26 Ohio St., 505, the judgment was reversed on the ground that Elisha Davidson' and Elijah B. Davidson are different names, and that the description of a person by one of these names, is not supported by proof of a person bearing the other name.

A person allowing himself to be tried and convicted by the name mentioned in the indictment, is for the purpose of serving out the sentence under such conviction, conclusively held to be the person bearing such name, and he cannot lawfully gain any advantage by concealing his true name and identity. He may take *his chances, as did the plaintiff in error, and if he succeeds, well and good for him; but should his identity and true name be discovered before his discharge, he would be liable to be held as an escaped convict to serve out his old sentence.

The warden, therefore, was right in holding the prisoner to serve out the remainder of his Warren county sentence.

In the next place it is claimed, that having been ordered discharged by the court of common pleas on habeas corpus, that such order is conclusive, and cannot be reviewed or reversed by a higher court.

A proceeding in habeas corpus is essentially a civil, and not a criminal proceeding. In ex parte Tom Tong, 108 U. S., 556, Chief Justice Waite uses this language on page 559:

“The writ of habeas corpus is the remedy which the law gives for the enforcement of the civil right of personal liberty. Resort to it sometimes becomes necessary, because of what is done to enforce laws for the punishment of crimes, but the judicial proceeding under it is not to inquire into the criminal act which is complained of, but into the right to liberty notwithstanding the act. Proceedings to enforce civil rights are civil proceedings, and proceedings for the punishment of crimes are criminal proceedings. In the present case-the petitioner is held under criminal process. The prosecution against him is a criminal prosecution, but the writ of habeas corpus which he has obtained is not a proceeding, in that prosecution. On the contrary, it is a new suit brought by him to enforce a civil right, which he claims, as against those who are holding him in custody, under the criminal process. * * " The proceeding is one instituted by himself for his liberty, not by the government to punish him for his crime. * * * Such a proceeding on his part is, in our opinion, a civil proceeding-, notwithstanding his object is, by means of it, to get released from custody under a criminal prosecution. ’ ’

When the code of civil procedure was first adopted, section 604. contained the provision, that until the legislature should otherwise provide, the code should not affect proceedings on habeas corpus; but it contained the further provision that such proceeding’s might be prosecuted under the code, whenever applicable; thus clearly recognizing such proceedings as a civil remedy.

By the revision of 1880, the legislature did otherwise provide, and habeas corpus became a part of the civil procedure statute, being Chapter VIII, of title one, division1 seven; and it is classed with actions for dower, partition, real actions, replevin, rights and remedies of sureties, contest of wills, and some other actions.

That judgments and final orders in the actions just named, and with which habeas corpus is classed can be reviewed and reversed by a higher court, is too clear for argument. That the same can be done in habeas corpus is settled by section 5751, Revised Statutes, which provides, that the proceedings upon a writ of habeas corpus, may be reviewed on error as in other cases. This court, in the ease of Wilcox v. Nolze, 34 Ohio St., 520, entertained a petition in error to review a proceeding on habeas corpus when the plaintiff below had been discharged by the lower court.

It is therefore clear that the rule found in some cases to the effect that a discharge on habeas corpus being in favor of personal liberty, must be regarded as final and conclusive, and not subject to review or reversal on error, does not prevail in this state.

It is also claimed that section 6725, does not apply to a judgment of discharge on habeas corpus. That section provides:

“Execution of a judgment or a final order, other than those enumerated in this chapter, of any judicial tribunal, or the levy or collection of any tax or assessment therein litigated, may be stayed on such terms as may be prescribed by the court in which the petition in error is filed, or by a judge thereof.”

Because the circuit court stayed the execution of the judgment or final order of discharge without fixing any terms, other than the simple stay, it is claimed that the above section is not applicable to such ease, and that there can be no stay, except on such terms as may be prescribed by the court. The answer to this is that the court has ample power to stay the execution of the judgment or final order, and it may grant the stay upon such terms as it sees fit, and if in the opinion of the court no other terms than the stay itself are required, the stay may be so granted. In the case at bar, while no terms were prescribed in the order of stay, in fact the prisoner remained in the custody of the warden until the hearing of the petition in error. The order of stay might well have been upon the terms that the warden safely keep the prisoner until the final hearing.

We think, therefore, that section 6725 is applicable to a stay in habeas corpus proceedings.

We find no error in the record, and the judgment of the circuit court is therefore affirmed.