Delaware gazette and state journal. (Wilmington, Del.) 1883-1902, 1885-07-16
BIe FRANK.
Governor Hill Decides that Now
Castle Way Have Him Again.

ALBANY, July 11.-Gov. Hill has de-
cided novel point which has arisen in
connection with the requisition issued by
the governor Of Delaware on him, asking
for the return of Francis fl. Garter alias
Francis Mcdonald, commonly called
"Big Frank" He was convicted
of q felony in Delaware in De-
cember, 1873, and sentenced to i'm
prisonment for '.ten years." which inn
prisonment was declared ito commence
December 10th, 1873, and to end Decem-
Der 9th, 1888" The prisoner served
only portion of his sentence, and on
September Sd, 1877, escaped from prison
and fled to this state, and has Just been
arrested in New York.
Governor Hill says in his decision:
"Colonel John o'Byrne appears as counsel
for the prisoner and raises several tech
nical objections and also the further OBJ
lection that the period for the imprison-
ment having expired the prisoner cannot
now be returned to prison. The technical
defects in the paper have been remedied,
leaving only the question to be decided
whether an escaped convict can be re-
turned to prison and compelled TO serve
out the remainder of his sentence after
the expiration of the period for which he
was sentenced. The question is to be de-
termined by the laws Of the State of
Delaware, and, it being conceded that
there is no statute of that State affecting
the point, il must be controlled by the
rule of the common law. II is laid down
in 'Hale's Pleas of the Crown, (volume /, ,
page 602,) that if a felon escape
the officers may retake him ut any
time after The reason of the rule is
stated TO be that the felon shall not take
advantage of his own wrong Agreeably
to this principle it has been frequently
held that where prisoner escapes and
remains at large for time he must by
the common law, serve after his recapture
for q period equal TO that part of his
term of sentence which had not yet run
out at the time he escaped q Bish.
Grim. Prac., Sd Ed, Sec. 1882, 81
The same doctrine is declared IN the
case of ex parte Edwards, 8 Grim. Law
Magazine, where, in an elaborate and
able opinion, Van Syckel, j., all the
authorities upon this subject are re-
viewed. The cases seem to regard it us
entirely immnteriul whether the recapture
occurs before or after the expiration of
the period of the sentence.
"But there are few decisions directly
in point. In the following cases, it was
held that the convict could be returned
to prison, although the term of the sen
tenoe' had fully expired before his re-
capture: (Cleek VS.. the Commonwealth,
81 Graft, TIT; State VS.. Cockerham,
Ired IN. g. L., 2O4; ex parte Clifford 30
Ind, 106 Dolan's case 101 Mass, $40 ;
Italian VS.. Hopkins, 81 Kan, $751; These
decisions were based upon the common
law and seem to be conclusive of the
question involved. The sentence must
be held to be for 10 years, and the state
ment in the record that it is to commence
at certain time and to end at certain
time is to be construed us description OF
the period of imprisonment of 10 years
without reference to the particular dates
named. The sentence can only be com
piled with and performed by imprison.
ment for the full period of 10 years, no
matter when it commences or when il
shall end, so long as only the full term OF
10 years imprisonment is actually
suffered. It follows, therefore, that the
accused must be returned to the authori
| ties of Delaware"