162 A. 842 | Conn. | 1932
From the pleadings in this case, it appears that on June 2d 1932, Herman Leifert was presented before a justice of the peace in the town of Goshen upon a grand juror's complaint, charging him with beating his daughter in violation of General Statutes, § 6061, entitled "Cruelty to persons." At the conclusion of the hearing, the justice sentenced him to thirty days in the county jail at Litchfield and fined him $100 and costs. On the same day, execution of the sentence was ordered suspended until his daughter could be placed permanently in a home. June 13th, 1932, the justice ordered the fine remitted and issued a mittimus to the sheriff of Litchfield County, directing his confinement in the county jail for a period of thirty days, and until the costs of prosecution were paid. On the same day, Leifert petitioned the Court of Common Pleas for Litchfield County for his release, claiming that he was unlawfully detained by the sheriff of the county.
The appeal advances three claims: (1) That the justice of the peace was not authorized to take final jurisdiction in the matter; (2) that the judgment was beyond his jurisdiction and void; (3) that he had no right to suspend the sentence and afterward issue a mittimus. The complaint against the petitioner was brought under General Statutes, § 6061. A violation of this section is punishable by a fine of not more than $500 or imprisonment for not more than one year or both. The claim of the petitioner is that the justice *602
of the peace could not take final jurisdiction of a complaint charging a breach of this statute, because of the provisions of General Statutes, § 6396, which provides that "no justice of the peace shall have final jurisdiction of any prosecution for crime, the punishment for which may be imprisonment in the state prison." General Statutes, § 6508, provides that "punishment by imprisonment, when not otherwise provided, shall be in the jail of the county in which the offense was committed or in the state prison, but any sentence of confinement in the state prison shall be for the period of at least one year and, whenever the punishment provided in any statute may be confinement in the state prison for a period of less than one year, the court pronouncing judgment may sentence the accused to imprisonment in jail for not more than one year nor less than forty days." The claim of the petitioner is that as § 6061 provides that a person violating its provisions may be "imprisoned not more than one year," such person may be imprisoned under this statute in the state prison; and, therefore, an offense under this statute is one of which a justice of the peace cannot take final jurisdiction under General Statutes, § 6396. This claim of the petitioner overlooks the provisions of the indeterminate sentence law, General Statutes, § 6507, first enacted in 1901, which provides that "when any person shall be sentenced to the state prison, otherwise than for life or in connection with a sentence of execution for a capital offense, the court imposing the sentence shall establish a maximum and minimum term for which such convict may be held in said prison. The maximum term shall not be longer than the maximum term of imprisonment prescribed by law as a penalty for such offense, and the minimum term shall not be less than one year; . . ." In State
v. McGuire,
The sentence of the justice was thirty days in jail and a fine of $100. He had the power to impose a sentence of thirty days in jail, but as he could not impose a fine of more than $25 (General Statutes, §§ 6392, 6396) the fine of $100 was clearly in excess of his power. The great weight of authority is to the effect that a sentence which imposes a punishment in excess of the power of the court is not necessarily void *604 in toto, but is valid when severable to the extent that the court had power to impose it although void as to the excess; and, if the sentence is severable, the prisoner should not be discharged on habeas corpus until he has served the valid part of the sentence. Wallace
v. White,
It is stated in the brief of both parties that a justice of the peace is without power to suspend a sentence he has imposed. See Alcorn v. Fellows,
The claim of the petitioner that the justice could not issue a mittimus upon June 13th, eleven days after the hearing, is without merit. The issuance of a mittimus in such a case is a ministerial and not a judicial act. *605 Alcorn v. Fellows,
There is no error.
In this opinion the other judges concurred.