Hopkins v. North

Walsh, J., delivered the opinion of the Court. William H. Whitby was convicted of driving an automobile while under the influence of liquor, and was sentenced by the police magistrate of Easton to serve sixty days in jail. He appealed to the circuit court but, when the case was called on November 18th, 1925, he dismissed the appeal, and on the same day entered the jail at Easton to begin serving his sentence. Several days later he became quite ill and, after the jail physician had examined him and stated he was in serious danger of contracting delirium tremens or pneumonia, the magistrate who had sentenced him attempted to authorize ⁵⁵⁵ the sheriff to release him in. the custody of two of his friends, so that he could, receive proper treatment, and the sheriff released him on Eovember 21st, 1925.

In the written order given by the magistrate to the sheriff directing Whitby’s release, it was stated that, on Whitby’s return from whatever hospital or sanatorium he went to, he was to finish serving his sentence, and it is also abundantly clear from other parts of the record that there was a general understanding that he was to resume serving his sentence as soon as his health permitted. The jail physician recommended that he be taken to some institution where he could be given special treatment instead of being placed in the general hospital at Easton, and thereupon arrangements were made to take him to the Patapsco Manor Sanatorium at Eliicott City. He was taken to this sanatorium several days later by one of the deputy sheriffs, hut the deputy took him at the request of his friends, and as the result of a private arrangement with them, and wns not at the time acting in his official capacity. Whitby remained at this institution until about January 18th, 1926, paid the bills for his treatment, though he states he did this under protest, and then returned to Easton.

Two days later, in the company of one of his friends, he presented himself before the magistrate and was told by the magistrate that there was a question in the mind of that official as to his right to recommit him to jail, and that he would not recommit him unless Whitby voluntarily agreed to go back and serve the remainder of his sentence. This Whitby declined to do, and the sheriff, not being certain of his authority, also declined to take him back to jail. It is evident from the record that the magistrate and sheriff acted in entire good faith in permitting Whitby to go to the sanatorium, and that he was really seriously ill when he was released from jail. But it is equally clear, and in fact both sides admit, that neither the magistrate nor the sheriff had the authority to release him, and it is further conceded that there was no commitment sending him from the jail to the Patapsco Manor Sanatorium.

With matters in this situation, the state’s attorney for Talbot County filed a petition for a mandamus to compel the sheriff ⁵⁵⁶ to arrest Whitby, and keep him in jail until he had served the remaining fifty-six days of his sentence. The sheriff demurred to the petition and, upon the demurrer being overruled, he filed an answer setting out most of the facts above mentioned and alleging that under these facts he had no authority to arrest Whitby. Issue was then joined short and, after a hearing before the full bench, the court ordered the writ of mandamus to issue as prayed, and from this judgment and order the sheriff has appealed. In addition to the questions sought to be raised by the demurrer, there are seven bills of exceptions in the record, the first six relating to rulings on the evidence, and the seventh being taken to the court’s action in refusing to grant the defendant’s first and second prayers asking for a directed verdict.

As the questions