59 A.2d 485 | N.H. | 1948
The petition for habeas corpus must be denied, and in so deciding we are treating the matter as though the petition were properly amended by adding an application for a writ of certiorari. Kruzas v. O'Dowd,
Although it is conceded that the case does not arise under the probation statute (R. L., c. 379 s. 14), the respondent goes on to claim that he was entitled to a hearing upon the mittimus as a matter of right before being committed on the question of whether he had violated any of the conditions upon which his sentence was suspended. A short answer to this is that no conditions appear in the agreed statement of facts before us, but it makes no difference whether the suspension was on condition that the petitioner make his payments as ordered (see R. L., c. 340, s. 18) or under the general powers which our courts have always exercised to suspend sentences for other good reasons. See State v. Drew,
Further, it may be pointed out that in the Couture case the court in speaking of an order similar to the one under consideration here said (p. 460) "orders like that under discussion have been common in this state for many years and have afforded a just and convenient method of administering the criminal law." Though the order in the Couture case concerned a violation of the liquor law the language is particularly applicable to orders such as the one before us, the purpose of which is to enforce a fundamental and just obligation on the part of a father to support his minor children. To hold that such an order entitled the petitioner to a further hearing as a matter of right on the question of the violation of any implied condition would enlarge a favor into a right and would result in two or more trials in the future, with inevitable delay and expense, where one in the past has been held sufficient to meet the ends of justice. While the law must scrupulously guard the rights of all, the extension of favors is not to be encouraged to those who stand guilty of a willful violation of one of the first legal and moral obligations of mankind.
The petitioner's final claim is that he is entitled to discharge because the mittimus bore no seal contrary to the provisions of our constitution (Pt. II, art. 87) and our statute (R. L., c. 386, s. 2) and *154
is therefore void. Conceding this to be so it does not avail him. It is undisputed that the Trial Court had jurisdiction of the person, the offense and had power to pronounce the sentence in question. The sentence has not expired and under such circumstances the great weight of authority is that habeas corpus does not lie. 39 C.J.S., Habeas Corpus, s. 27c. The commitment here is by virtue of the lawful sentence and the mittimus is a mere ministerial act for carrying the sentence into effect. 24 C.J.S., Criminal Law, s. 1607; see also, Couture v. Brown, supra. This being so "a defective [mittimus] warrant of commitment does not make the prisoner's detention unlawful or call for his release." 24 C.J.S., Criminal Law, s. 1608, p. 163. See also, In Re Thayer,
Petition dismissed.
All concurred.