In re Writ of Habeas Corpus in behalf of Schantz

144 N.W. 445 | N.D. | 1913

Bbuce, J.

(after stating the facts). In the case of State v. Winbauer, ante, 43, 143 N. W. 387, tbis court beld tbat tbe judgment rendered by tbe Hon. E. T. Burke at Bismarck on tbe 13tb day of February, a. d., 1908, was a valid judgment. Section 9513 of tbe Rev. Codes of 1905 provides tbat “tbe term of imprisonment fixed by tbe judgment in a criminal action commences to run only from the time of sentence of the defendant; but if thereafter, during sucb term, tbe defendant escapes, or by any legal means is temporarily released, from sucb imprisonment, and subsequently returned thereto, tbe time during which be was at large must not be computed as part of sucb term.” It is true tbat no judgment was ever actually entered in tbe records of tbe court in Barnes county until December 24, 1909. It is also true, however, tbat on tbe 13th day of February, 1908, and on tbe same day tbat sentence was orally pronounced by tbe court at Bismarck, tbe petitioner obtained a certificate of probable cause, and furnished bail in tbe sum of $500 on an appeal from said judgment to tbe supreme court, and thereafter, and within tbe time prescribed, duly served and filed bis notice of appeal. Tbis appeal was then an appeal taken by tbe defendant, and a valid appeal, and tbe defendant was thereby temporarily and by “legal means” released from imprisonment. A motion to dismiss tbe appeal on tbe ground tbat the judgment bad not been entered of record in Barnes county, and tbat therefore there was no judgment to appeal from, would not have been sustained by this court. See State v. Winbauer, supra. Section 10139 of tbe Rev. Codes of 1905, which relates to appeals in criminal cases, provides tbat sucb an appeal may be taken not within one year, or “within one year after the entry thereof by default, or after written notice of the entry thereof in case tbe party against whom it is entered has appeared in tbe action,” as is tbe case under § 7204 of tbe Rev. Codes of 1905, in civil actions; but “within one year after its rendition’’ It seems to be generally beld tbat tbe “rendition of a criminal judgment is tbe judicial act of a court in pronouncing tbe sentence of tbe law upon tbe facts in controversy, and ascertained by tbe pleadings and tbe verdict,” and does not involve tbe entry of tbe judgment upon tbe record, and that tbe time for appeal or tbe suing out of a writ of error begins to run from tbe time of sueb pronouncing, and not from tbe time of tbe filing. See 7 Words & Phrases, p. 6082; Fleet v. Youngs, 11 Wend. 522, 527, 528; Columbus Waterworks Co. v. Columbus, 46 Kan. 666, 26 Pac. 1046, 1049; Winstead v. Evans, — Tex. Civ. App. —, 33 S. W. 580; Burns v. Skelton, 29 Tex. Civ. App. 453, 68 S. W. 527; Ryals v. McArthur, 92 Ga. 378, 17 S. E. 350; State ex rel. Green v. Henderson, 164 Mo. 347, 86 Am. St. Rep. 618, 64 S. W. 138, 141; Schurtz v. Romer, 81 Cal. 244, 22 Pac. 657; Farmers’ State Bank v. Bales, 64 Neb. 870, 90 N. W. 945; Craig v. Craig, 66 Hun, 452, 21 N. Y. Supp. 241, 242; Dieffenbach v. Roch, 112 N. Y. 621, 2 L.R.A. 829, 20 N. E. 560, 561; Re Rose, 3 Cal. Unrep. 50, 20 Pac. 712, 713; Re Cook, 77 Cal. 220, 1 L.R.A. 567, 11 Am. St. Rep. 267, 17 Pac. 923, 19 Pac. 431, 433; State ex rel. Brown v. Brown, 31 Wash. 397, 62 L.R.A. 974, 72 Pac. 86, 87; Winstead v. Evans, — Tex. Civ. App. —, 33 S. W. 580 (citing 1 Black, Judgm. § 106); Gray v. Palmer, 28 Cal. 416, 418; McLaughlin v. Doherty, 24 Cal. 519; Martin v. Pifer, 96 Ind. 245, 248; Vigo County v. Terre Haute, 147 Ind. 134, 46 N. E. 350, 351 (quoting Smith v. State, 71 Ind. 250; citing also Chamberlain v. Evansville, 77 Ind. 542, 548; and following Chissom v. Barbour, 100 Ind. 1; and Mayer v. Haggerty, 138 Ind. 628, 38 N. E. 42); Coe v. Erb, 59 Ohio St. 259, 69 Am. St. Rep. 764, 52 N. E. 640; State v. Biesman, 12 Mont. 11, 29 Pac. 534, 536; Harmon v. Comstock Horse & Cattle Co. 9 Mont. 243, 23 Pac. 470, 471. Contra, Ætna L. Ins. Co. v. Hesser, 77 Iowa, 381, 4 L.R.A. 122, 14 Am. St. Rep. 297, 42 N. W. 325, 328; Wood v. Etiwanda Water Co. 122 Cal. 152, 54 Pac. 726, 728.

In tbe case of Mayer v. Haggerty, 138 Ind. 628, 38 N. E. 42, tbe court, on tbe 4th day of February, 1890, made its special findings, in which it fully settled all tbe issues as to tbe rights of tbe parties. Tbe entry of tbe findings was prepared for the clerk, but the latter, in entering tbe finding and judgment in tbe order book, made a mistake and omitted to enter tbe judgment directed by tbe court. On March 16th, 1892, and more than two years thereafter, Haggerty filed bis motion for an entry of tbe judgment nunc pro tunc as of February 4th, 1890. This motion was granted and tbe entry made. An appeal was prayed April 16th, 1892, more than two years after tbe rendition of tbe judgment, and was not perfected until January 14th, 1893. Tbe court, among other things, said: “Appellee insists that the record presents the fact that the appeal was taken too late. The original finding and judgment were given on February 4, 1890. The appeal was prayed April 16, 1892, more than two years after the final judgment, and not perfected until January 14, 1893. The nunc pro tunc judgment relates back to the time when it was rendered. It is defined: 'Now for then; that a thing is done at one time as of another time when it should have been done/ 16 Am. & Eng. Enc. Law, 1005. 'The effect of this record was to enter judgment as of the former date, and when entered it stood as a judgment of that date, and had the same effect as if it had been properly entered of record and signed by the judge’ on the 4th day of February, 1890. Leonard v. Broughton, 120 Ind. 536, at pages 544, 545, 16 Am. St. Rep. 341, 22 N. E. 731. The time within which an appeal must be taken begins to ran from the date of the rendition of the judgment, and not from the date of its entry by the clerk in the order book. In this case the court rendered his judgment when he read and filed its finding on the 4th day of February 1890, and ordered judgment to follow the finding. Anderson v. Mitchell, 58 Ind. 592; Chamberlain v. Evansville, 77 Ind. 542, 548; Chissom v. Barbour, 100 Ind. 5; Gray v. Palmer, 28 Cal. 416; Peck v. Courtis, 31 Cal. 207; Genella v. Relyea, 32 Cal. 159; 1 Black, Judgm. §§ 130, 131. It is clear from these authorities that the appeal comes too late to bring before this court the proceedings prior to and in the trial on the merits.” The appeal in the case at bar was a valid appeal. Under the decisions, and under § 9513, Rev. Codes 1905, it can hardly be controverted that when a defendant by his own act postpones the putting in effect of a sentence, he cannot take advantage there-, of, and the case of Re Markuson, 5 N. D. 180, 64 N. W. 939, on which petitioner seems to chiefly rely, does not hold to any other rule. It is true that in that case the court held that the defendant’s term had elapsed, and he could no longer be imprisoned. It was held, however, in that particular ease, that the carrying out of the sentence had never been legally postponed. In that case, indeed, the postponement was not effected by the actions of the defendant, but by the illegal and unwarranted actions of the court. In the case at bar, on the other hand, a certificate of probable cause was obtained by the defendant, an appeal prayed, and a supersedeas bond given.

"Under defendant’s bond, it was Ms duty to deliver himself up to the court for its action. Miller v. Evans, 115 Iowa, 101, 56 L.R.A. 101, 91 Am. St. Rep. 143, 88 N. W. 198; State v. Banks, 24 N. D. 21, 138 N. W. 973. He can hardly, also, be held ignorant of the nunc pro tunc order, as, after its entry, he himself prayed for a dismissal of his appeal. He must be charged with notice of the condition of the record at that time, and at that time the nunc pro tunc order of judgment was of record. In the case of Miller v. Evans, supra, the Iowa court, in passing upon a somewhat similar case, said: “But if petitioner’s contention be accepted, the officers of the court may accomplish by delay that which the court itself is powerless to do.. Aye, more; for, while the court could not postpone the penalty of the law denounced against the offender, its officers might by procrastination wholly obviate and prevent punishment. Re Webb, 89 Wis. 354, 27 L.R.A. 356, 46 Am. St. Rep. 846, 62 N. W. 177, 9 Am. Crim. Rep. 702, relied on by appellant, is not precisely like the case at bar in its facts, for there the prisoner was actually in custody, and when, at his request, the sentence was suspended, he was allowed his liberty. The order of suspense was adjudged to be in excess of the court’s authority, and the term of imprisonment held to have begun eo instante upon the entry of judgment, and to have terminated at the end of the period fixed therein, although the prisoner had not been incarcerated an instant of that time. A like conclusion was reached in Re Markuson, 5 N. D. 180, 64 N. W. 939. In both cases, however, this conclusion seems to have been treated as a necessary result of declaring the order suspending the sentence illegal. We are unable to discover any reason for allowing the convict to thus profit by a delay to which he has assented, or in which he has acquiesced without objection. The time at which the sentence is to be carried out is ordinarily directory only, and forms no part of the judgment of the court. State v. Cockerham, 24 N. C. (2 Ired. L.) 204; 19 Enc. Pl. & Pr. 480; Ex parte Bell, 56 Miss. 282; Dolan’s Case, 101 Mass. 219; Hollon v. Hopkins, 21 Kan. 638. In the last case it was said that The time fixed for executing a sentence, or for the commencement of its execution, is not one of its essential elements, and, strictly speaking, it is not a part of the sentence at all. The essential portion of the sentence is the punishment, including the kind of punishment and the amount thereof, without reference to the time when it is to he inflicted.’ It was also observed that ‘the only way of satisfying a judgment judicially is by fulfilling its requirements;’ and, in Dolan’s Case, that ‘expiration of time without imprisonment is in no case an execution of the sentence.’ This cannot be waived, as here claimed, by the officers of the court whose duties with respect to its judgments are purely ministerial. The time for its execution was not of the essence of the judgment, unless the prisoner, by demanding that it be. immediately carried out, made it such. It was his duty to surrender himself and submit to the penalty of the law, as well as that of the sheriff to inflict it; and, by taking advantage of the neglect of the latter and of the clerk, he cannot avoid the punishment which his wrongdoing will be assumed to have justly required.”

We thoroughly agree with this interpretation of the case of Ee Markuson, supra. The controlling fact in the case at bar, and which distinguishes it from the case of Ee Markuson, is that the defendant himself suspended the execution of the sentence, while in the Markuson Case the sentence was suspended by an illegal and unauthorized act on the part of the court. In the case at bar, also, the defendant furnished a supersedeas bond, under the terms of which he was required to submit himself to the action of the court.

The writ is quashed.

EueKe, J\, being disqualified, did not participate.