191 Ind. 547 | Ind. | 1921
Lead Opinion
Appellant pleaded guilty in the city court of Lebanon and was convicted on a charge of having whisky in his possession with the purpose of selling, giving away, or othewise disposing of the same (Acts 1917 p. 15, §4, §8356a et seq. Burns’ Supp. 1918). The mayor, acting as city judge, assessed his punishment at a fine of $500 and costs, and imprisonment in the county jail for six months, being the maximum penalty for the offense charged, and within the jurisdiction of the city court to impose (§8843 Burns 1914, Acts 1905 p. 219, §217). Sentence was pronounced accordingly but the mayor stated in open court that “the part of the judgment sentencing appellant to the county jail would be suspended indefinitely if he would pay the amount of the fine and costs,” and wrote upon the margin of the record of the judgment a signed memorandum in the words “sentence suspended during good behaviour.” Appellant entered bail for the stay of the fine and was released from custody, and afterward paid the fine and costs. More than eight months later, being sixty-seven days after his term of imprisonment would have expired if he had been sent to jail immediately, the mayor issued to the chief of police a warrant of commitment, under which the chief of police sought to rearrest appellant and commit him to the Indiana State Farm for the term of six months.
Appellant filed his complaint against the mayor and chief of police, alleging the foregoing facts, and fur
The parties have waived all questions as to the form of the action, and we decide nothing as to whether injunction would have been the proper remedy, if the complaint had been otherwise sufficient.
This case does not involve any question concerning the power of a circuit or criminal court to impose a suspended sentence or to revoke it, under §§2174, 2176 Burns 1914 (Acts 1907 p. 447, as amended by Acts 1909 p. 434), nor as to the right of a person, released under a suspended sentence by a circuit or criminal court, to be discharged if his sentence is not revoked
In the case of McLaughlin v. Etchison, supra, the appellant was convicted before a justice of the peace of the offense of erecting and maintaining a public nuisance, upon' an affidavit which was insufficient and would have been quashed on appeal, had an appeal been taken. A fine of $10 was imposed and it was adjudged that he stand committed until it should be paid or replevied. He was permitted to go free at the time, however, but twelve days later a mittimus was issued on which he was arrested and committed to jail. The court said: “It is the duty of'a justice of the peace, if a defendant in a criminal case does not immediately pay or replevy a fine adjudged against him, to commit him to jail. While this should be done at once, we know of no reason why, if for any reason it is not done, the justice may not issue a mittimus thereafter.' We think he may, nor do we think a defendant is in a situation to
In Pritchett v. Cox, supra, the appellant had been convicted of having a “trammel net” in his possession, in violation of the “fish law,” and sentenced by a justice of the peace to pay a fine of $5 and costs taxed at $27.95, and to be confined in the county jail until the fine and costs should be paid or replevied. After the judgment had been entered and signed a motion in arrest of judgment was made by the appellant and sustained, and he was permitted to go at large. But after the lapse of 105 days a warrant of commitment was issued on which he was arrested and imprisoned. An action to obtain his release was appealed to this court. In deciding .that the justice of the peace was without power to arrest the judgment after having made a finding of guilty and rendered judgment thereon, and that the second arrest was lawful, notwithstanding the lapse of time, the court said that appellant insisted the mittimus was void because of the failure of the justice to issue it immediately or in a reasonable time, but quoted the language, as above set out, from the decision in McLaughlin v. Etchison, supra, and refused to order the appellant released.
The weight of authority throughout the United States is to the same effect, the arguments in favor of that doctrine being so well presented in the case first cited below that it is not necessary to repeat them. State v.
The following decisions of courts of last resort are to the contrary, being based upon reasons that are well stated in the case first cited below. Ex parte Clendenning (1908), 22 Okla. 108, 97 Pac. 650, 19 L. R. A. (N. S.) 1041, 132 Am. St. 628; Scottsboro v. Johnston (1898), 121 Ala. 397, 25 South. 809; Grundel v. People (1905), 33 Colo. 191, 79 Pac. 1022, 108 Am. St. 75; In re Peterson (1911), 19 Idaho 433, 113 Pac. 729, 33 L. R. A. (N. S.) 1067; Tuttle v. Lang (1905), 100 Me. 123, 60 Atl. 892; State v. Clifford (1913), 84 N. J. Law 595, 87 Atl. 97; In re Markuson (1895), 5 N. D. 180, 64 N. W. 939; People v. Acosta (1906), 10 Porto Rico 291; Scott v. Chichester (1908), 107 Va. 733, 60 S. E. 95, 16 L. R. A. (N. S.) 304; In re Webb (1895), 89 Wis. 354, 62 N. W. 177, 46 Am. St. 846, 27 L. R. A. 356.
But while thosereasons might appeal to a legislature, charged with the duty to decide what the law ought to be, and to change it wherein it needs amendment, they
Rehearing
On- Petition foe Reheaeing.
Referring to certain decisions to the effect that a sentence which is not legally stayed by an attempt to suspend it begins its operation when it is pronounced, and ends when the time of imprisonment therein mentioned has expired, although no imprisonment be suffered, the Supreme Court of South Carolina said: “The reasoning of the cases first cited we think sophistical, because it rests upon the false assumption that a sentence necessarily begins to run and to be satisfied the moment it is pronounced. The execution of a sentence may be postponed by appeal, by escape and by other causes, but the time of delay in the execution is not counted as a part of the time of imprisonment fixed by the sentence. No more can the delay due to the release of the convict under a void order of the Court attempting to suspend the sentence be so counted. The sentence is satisfied, not by the lapse of time after it is pronounced, but by
The petition for a rehearing is overruled.