Mackelprang v. WalkerMackelprang v. Walker
- Reporters:
- , ,
- Before:
- Elias Hansen, Cherry, Folland
*1 v. WALKER. MACKELPRANG (277 April 20, 401.) 1929. P. Decided No. appel- Huntington Park, Cal., for Hancock,
George B. lant. respondent. City, for Shay, of Cedar
Reuben J. HANSEN, J.
ELIAS applied of Iron to the district court Delroy corpus re- to obtain his Utah, writ of habeas county, for a Walker, custody the marshal of W. G. from lease City, county, Cedar Iron application Utah. The was dis- *2 appeal prosecuted judgment deny- missed. This from the ing applicant’s discharge.
Mackelprang right discharged claims the from the custody upon of the marshal this state of facts: September 27, 1927, complaint
On a verified filed justice in City, county, charg- the of Utah, Iron Cedar ing Delroy Mackelprang possession with the unlawful of pint whisky. arraigned, one Upon being of moonshine Mackelprang guilty. entered a of He waived time for passing sentence, whereupon justice peace pro- the of the Mackelprang pay nounced sentence to the effect that a fine jail. of city or serve 75 in the $75 justice peace (Mackel- of the testified “He that: paid gave prang) $50, and other bond the to be $25 paid days.” justice in 30 The bond of referred To the peace provides hereby that the sureties “do undertake promise Delroy Mackelprang, that the above-named defendant, appear or, $75, will if above sum of perform conditions, City he fail to we will to Cedar money of lawful the United States the sum of $75.” bond was executed two sureties and delivered to the justice peace. Mackelprang paid
Neither nor his sureties the ramain- ing justice peace of the fine. The enter of did not however, did, his docket or elsewhere. He following complaint: copy make the notation on a guilty. jail. “Plead Fined or 75 Pd. $75.00 proceedings appear No further to have had $25.00.” been City Delroy Mackelprang in the case of Cedar until v. Mackelprang about March meantime con- family City, tinued to reside with his at Cedar Be- Utah. September 27, 1927, tween and March he ab- City sent from Cedar about week. appear
It is made to that on March marshal City upon Mackelprang custody of held Cedar commit- justice City, Utah, peace of ment issued Cedar Mackelprang. City Delroy also It in the case Cedar v. 8, 1928, appears date, on that March the district court county released. The first of Iron ordered directing discharge Mackelprang appears order no written based the fact have been in the docket of the sentence was entered City marshal ordered to peace of until after the Cedar Mackelprang. As soon the marshal was directed release peace Mackelprang, of Cedar to release following City written his docket made Delroy Mackelprang: City Cedar brought Complaint “Sept. 27, 1927. Defendant into court. read duly having rights he been advised all to defendant *3 duly guilty. passing plea of The defendant waived time for entered a passed upon him that and that sentence be at the sentence consented pay Whereupon a of the defendant sentenced to fine time. jail. city paid. in of said fine the $25.00 serve $75.00 stay days upon granted defen- a of execution for ten the The court signed good furnishing by and a two sufficient sureties. dant bond Rollo, H. Alex Justice of the Peace.” docket, in the As as the was so made the soon peace a commitment in and issued words cause) figures following (omitting title court and : of County, City, the Marshal Cedar Iron of Utah to of “The State Greetings: Utah — Delroy day September, “Whereas, A. D. of one on the 27th me, Rollo, brought H. of before Alex charged City, county, Utah, peace and state of in and for Cedar Iron unlawfully possession pint having one of moonshine in with his day City whisky 27th of said Cedar within the limits September, 1927, contrary Cedar revised ordinances of A. D. City; and guilty adjudged “Whereas, offense of said defendant was said jail city imprisoned for in to $75 sentenced be days; term of only paid: “Whereas, has fine been said hereby take “Now, therefore, you to commanded are forthwith keep safely your custody Delroy Mackelprang and into said or secure same him of $50 until he shall the said sum provided jail paid by exceeding day law, city as not one for each dollar of fine. my day “In witness whereof have hereunto set hand this 8th March, D.A. Rollo, “Alex H. of the Peace.”
“Justice proceeding this foregoing it is virtue of the com- mitment City justify marshal of Cedar seeks to custody his Mackelprang.
There is a adjudicated conflict in the cases as to timely effect imprison- of a failure to enforce a sentence against ment one has If who been of a convicted crime. delay enforcing imprisonment a sentence of is caused pending judgment, of a motion arrest of a motion trial, pursuance for a suspended new of a sentence provided 74, upon for p. 144, appeal Laws Utah c. necessary give ample for other cause a defendant time opportunity safeguard guaran- every himself avail by law, teed him there can be no doubt serious but that delay any pur- enforcement of the such pose deprive jurisdiction does court of to enforce judgment. jurisdictions that, its In some effect it is in held pardon defendant, the absence of death or the only by imprisonment sentence of is satisfied the actual imprisonment. following sup- suffering of the cases port, support, Drew, such N. or tend view: State *4 v. 402, 875; Morgan 719, Adams, 720, A. 226 F. 141 H. 74 466, State v. 475; 6, 8, Abbott, 70 E. 33 C. 87 C. S. C. A. S. 1912B, 1189; (N. S.) 112, L. Ann. v. R. A. Cas. Norman 698, 256; parte Lujan, Rehberg, App. E. Ex 12 Ga. 78 S. v. 310, 587; State, 811, 100 18 Fuller Miss. 57 N. M. 137 P. (N. S.) 242, 98; 806, 1914A, 39 L. Cas. So. R. A. Ann. v. Circuit 367, 188; App. P. Friske Collins, 8 97 re Cal. 812; Egbert Tauer, Court, 415, N. 191 51 D. 214 W. S. v. Tanner v. 199; 370, Wiggins, 547, 134 N. N. E. E. Ind. 132 v. 718; Persons, 203, 459, Daniel 14 Ann. Cas. 45 So. 54 Fla. 260; Evans, Iowa, 101, v. 826, 115 Miller 74 S. E. 137 Ga.
125 ; 196, 101, Rep. 91 143 56 L. R. A. Am. St. N. W. 88 786; Commonwealth, 130, Ky. S. 157 162 W. Brabandt v. S.) Hinson, 250, 310, (N. 72 L. A. 156 N. C. S. E. 36 R. Re 64, 597, 352; Spencer 38 R. State, 125 Tenn. 140:S. W. L. v. (N. S.)
A. 680. jurisdictions that, is In other if the defendant is held indefinitely recognizance go permitted on after his own imposed, if enforcement of the sentence unreasonably delayed, jurisdiction en- loses imprisonment. parte Clendenning, 22 Okl. force the Ex (N. Rep. 650, S.) 1041, 108, 19 A. 132 Am. 97 P. L. R. St. 628; 287, 23, People Barrett, 202 R. v. Ill. 67 N. 63 L. A. E. ; Rep. 230; People, Mich.
82, Am. v. 33 296 95 St. Weaver (C. 748; parte C.) 46 F. Ex Peter United States v. Wilson 729, (N. S.) 1067; In son, 433, 19 Idaho 113 P. 33 L. R. A. 180, 939; Markuson, Strickler, 51 5 N. D. 64 W. In re re N. 159, 700, 620; McPherson, Wyo. 33 P. 36 Kan. Posvar v. 338, 667; 531, Flint, 25 95 P. In re Utah 71 P. Am. St. 253 809; 853; 397, Rep. Johnston, 121 25 v. Ala. So. Scottsboro State, 191, 1022, Rep. 33 79 P. 108 Am. St. Grundel v. Colo. 892; Lang, 123, Clifford, 75; Me. 60 A. v. 100 State v. Tuttle 97; Law, 595, Chichester, 87 A. 107 Va. 84 N. J. Scott v. (N. 95, S.) 304; Webb, L. R. A. In re 933, E. 60 S. Rep. 177, 356, 354, A. Am. N. W. 27 L. R. St.
Wis. dealing delay with the effect of a Other cases imprisonment are referred of sentence of enforcement citations, foregoing but the cases above cited in some divergent judicial opin- illustrate the views will serve ion. Olsen, 44 Reese Utah
The case of support of the contention that in the court below cited custody by lawfully the marshal held opinion City. appears from far as Cedar So enforcing imprison- delay case, question not involved. Reese was imposed upon Reese ment opinion was rendered 1914. The March sentenced had served about time Reese April at which *5 Reese, therefore, days. must have been committed within passed. few after was Case, supra, announced in the Flint applicable law proceeding. facts in this In that case Richard Flint forgery February 25, was -convicted the crime on 5, 1902, Time for sentence was set for March then appeared to March 1902. Flint continued for sentence date, on the at which last-mentioned time the court ordered suspended permitted go that sentence be and defendant recognizance. judge on his On own December before whom the defendant was tried and convicted made directing appear and entered an order that Flint before Monday, January court for sentence on 1908. On that day January 12, time for sentence was continued to 190-3. appeared January 12, 1903, defendant “ob- jected any proceedings premises further in the on the ground jurisdiction that the person court had no of the objection overruled, the defendant.” The was and the de- year fendant sentenced to serve a term of one in the state prison. officer, He proper was committed with direc- tions that the sentence applied be enforced. Flint to this corpus. court for a writ of habeas It was held that Flint illegally liberty restrained of his and he was ordered discharged. opinion course of the this court said: suspended judgment indefinitely, “When the court and ordered the discharged custody, longer jurisdiction defendant from it no had over him, subsequent proceedings premises and all in the were unauthor- by law, ized and are therefore void.” In the had before peace City, Cedar Mackelprang custody discharged from paid when he imposed upon of the fine him $25 and fur- nished a payment remaining for the bond There $50. nothing peace records of the of Cedar City which justice’s juris- indicates that the court retained person diction over the after the paid and the bond executed and delivered. The bond con- *6 appearance provision for the future of Mackel- no tains pay prang, except the remainder of the fine. The length Mackelprang peace who sentenced testified at concerning in the court below had before Mackelprang. City Delroy So him in the case of Cedar testimony, discharge appears Mackel- from his of far as According unconditional, prang except was as to the fine. justice’s testimony given secure the to the the bond was payment remaining of fine of within $50 having purpose. peace, and for no other of accept security payment elected to for the of the remainder fine, may security given and at the of not retain the so imprisoned. In this same time direct that be case, Case, supra, as in the Flint the defendant dis charged indicating custody any from order without required such himself for defendant would be to surrender any judgment imprisonment. execution of of Zundel, In the case of Utah Rasmussen v. imposed Mackel- a sentence similar to the one
prang ap by In that was under review this court. pears city Rasmussen had been convicted Brigham killing City, Utah, a deer out of the offense of pro he convicted season. The statute under which pro person persons violating any “any vided that guilty misde of this shall deemed visions section be any provision if of this sec meanor and it be a violation elk, antelope, sheep pertaining deer, tion mountain goat, upon in a thereof shall fined mountain conviction imprisoned not less than sum not less than $200.00 conviction, city its ninety days.” Upon court entered stipulation judgment, according facts filed in the there court, “was then and sen that Rasmussen district spend the court to either a fine tenced county jail.” Rasmussen failed to custody of the “remanded to the fine and was therefore county day jail Elder to serve the 90 of Box sheriff applied Box the district court of Rasmussen sentence.” county corpus, claiming for a writ of habeas Elder that he unlawfully liberty restrained of his the sheriff county. hearing Box A was had in the district court. Elder discharge custody. Upon Rasmussen was denied a from an court, discharged. appeal to this he was ordered Gideon, opinion, written Mr. Chief Justice course it is said: *7 stipulation either to a fine of $200 “The is that defendant was apparently jail. words, spend left in In other the court sentence or to the sheriff to determine which to the defendant elementary judgment, especially imposed. in that should be It is definite, cases, not and ministerial officers should criminal should be imposed. neces- It is not be in as what is to be left doubt to sary authority support proposition. in that to cite to a fine failure this was not in the alternative —that appellant fine has imprisoned labor until such the at hard should be impose paid section
been authorized to the court was —as Comp. Laws Utah 1917.” uncertainty The same im- that existed in the sentence posed upon foregoing in Rasmussen the case exists City Mackelprang. sentence of The ordinance of Cedar Mackelprang us, which not and therefore violated is before provides for the we are not advised whether such ordinance payment But, imprisonment what- of a fine or for or both. ordinance, provisions provisions the such ever be the of imposed upon Mackel- cannot make certain the’ sentence prang. under which the commitment
It will be observed that City Mackelprang being of Cedar the held marshal Mackelprang length time that is uncertain to the of the remainder of imprisoned, in the event provides that Mackel- paid. fine The commitment was not payment pays prang or secures until he shall be held day “one in exceed $50, imprisonment not shall but fine,” the word city jail Whether for each dollar fine or the whole unpaid part “fine” refers language clear as to Neither is fine is not clear. Mackelprang minimum time that city jail shall serve paid. the event the remainder fine irregularities There urged, are number of other but necessary view the conclusions we have reached it is not phases case, discuss other express and hence we opinion no sufficiency as to the of the commitment under held, which irregularities or the other urged by appellant. opinion
We are of the the issuance of the second City commitment the case Delroy Cedar Mackel prang and all had thereunder were unauthor ized law and hence He void. discharge. entitled Such is the order. J„ HANSON,
EPHRAIM concurs. (concurring). STRAUP, I J. concur in the views ex- pressed prevailing and the opinion. result reached facts, them,
The salient appellant, as view are that peace September pleaded before 27, 1927, *8 guilty charge having unlawfully intoxicating to a liquor possession. in his Just what was or rendered pronounced plea record, on the is not of except as by pro entry justice’s a nunc docket, shown tunc made in the presently indicated, as more than five months after the It, however, plea. justice, is said the in corpus the habeas he, proceeding, made, plea testified that when the was pronounced orally pay a sentence that the accused a fine days jail. city entry in serve the But no or record it, or memorial or memorandum was made of other an than justice by copy complaint: on a the indorsement guilty. days jail. Fined or 75 “Plead Pd. $75.00’ $25.00.” further shows that at that The record time a bond undertaking, good with two sureties, sufficient was by given accepted justice, by the terms of which promised pay remaining to the sureties fine of $50 days, pay it, to and, if accused failed within if the discharged custody, from he was not then fact
accused delay. go- permitted hence There the matter to without was thereafter, than five months when the rested until more upon a the accused was issued commitment which custody. by city At such marshal and held arrested appear it made that the of the fine was time was balance any appear paid, that notice was but was not made not paid it, given that that the accused had not sureties any request made of the sureties to it. was allegations accused, petition of an filed On restraint, the district court issued unlawful detention and hearing corpus. On the thereof it was held habeas writ restrained, unlawfully that the accused was detained and clearly discharged day. was without It is and hence appear grounds or for the uncondi- made to reasons discharge, urged, ruling except, that tional ground largely not ren- on the had based upon or entered a the cause which dered lawfully Up there issue. to that time commitment could entry any entry rendition or no or memorial of the discharged unconditionally judgment. After the accused court, day, March and on the same the district notice, motion, sponte, consent, justice, sua without docket: this in his made brought Complaint “Sept. into court. read 1927. Defendant having duly rights advised of all he been defendant guilty. duly passing defendant waived time entered a passed upon at sentence be him consented that the sentence and Whereupon a fine the defendant was sentenced time. jail. city of said fine was $25.00 or serve 75 of $75.00 stay granted paid. for ten execution The court good furnishing signed sure- two and sufficient a bond defendant ties.” *9 “Sep- appears been made on its face have indisputably 27, 1927,” though admittedly it
tember 1928, 8, more than five months not made until March discharged thereafter, after the accused was corpus proceeding. justice habeas thereupon issued commitment, upon another again which the accused was custody by arrested and city held in marshal. The ac- again applied cused granted for and was a writ of habeas corpus. hearing On that the district court to dis- refused charge him. The reason for such refusal is said to be that the second proper commitment was issued on a and valid judgment, and unlawfully hence the accused was not held liberty. or restrained of his
Comp, 1917, 9422, Laws Utah of the Criminal Code § provides Courts, Procedure of Justices’ that “a docket must kept by justice peace, be in which must be en- action, tered each and the of the court therein.” By plea justice, guilty, section 9449 the aon or on a ver- guilty, required appoint dict of rendering is a time for judgment, which, waived, unless must not be more than two nor than six less hours after the or verdict. general weight judicial is authority It rule and the justice’s judgment, a at rendered an unauthorized time place, generally void, parties is held to be unless the have that it be consented so rendered. 35 J. 672. C. C. 16 R. great weight authority L. stated that a mandatory, statute of such nature is and where peace judgment fails to observe it and renders a at date, authors, later however, invalid. Both contrary, state that there are cases to the but that such hold- ings weight authority. are not the that, am, however, precluded by
As to to some extent Peterson, the case of Kolb v. 50 Utah where peace it was held that entered pronounced days after six sentence or rendered was however, court, observing invalid; judg- ought practicable to have been entered as soon as ment after pronounced. holding Because the seems to weight authority, against and because the cases support ruling support it, main cited to do not authorities, Cyc. 838, L. R. C. and 23 the cited *10 132 jurisdiction
relating general of record and of and to courts justice jurisdiction is terms, court in our courts of which a 323, 449, Roberts, 21 R. not, 113 Ala. So. 36 L. Coleman v. Rep. relating situation, 84, Ill, to a different A. Am. St. Law, 469, Pennsylvania Co., R. J. and Holmes v. N. relate even to 12 Ann. Cas. which does not A. subject, holding strictly I confined think the should court, particular to case facts of the before and accept by implication. I thus the hold no sense extended practic ing judgment that should be entered as soon as a rendered, judgment pronounced after sentence is or able judgment days thereafter not for and that a entered six is ipso willing, But am neither that reason facto invalid. holding any required, carry further. am I to recognize Technically, I a between the rendi distinction ordinarily entry it, judgment and tion a and judicial But a ministerial act. the one is a and the other justice peace, court, or of the there in a case tried to a proper of the rendition must be some and memorial entry court, judgment, some in the minutes of or cause, document filed in the some memorandum or entered, judgment Where no has been other memorial. minutes the court or other memorials there are no where papers in cause to the kind show made or filed with it rendered, judgment the evidence rendition court, merely the breast of nor carried cannot be may memory, depend his which as occasions made judgment slippery is may When a biased. arise become entered, authoritatively properly it becomes the itself ordinarily of it. uncontestable evidence memorial, and .the contrary, But, of a statute in the absence general peace, rule to a court or tried judg purposes an record for most is that Plant, necessary completion. 94 U. to its Gunn v. is ment Thompson Superior Court, And in 24 L. Ed. S. it is held that Cal. entered, until there not rendered way is no other to render a court, in such a *11 only justice required the memorial keep which the is to is his docket. the
While statute there was somewhat different from our statute, yet principle the in hand is However, no different. go I go need not that far. need but that extent there must be judg- some memorial of the rendition of the justice. memory ment other than the mere justice copy memorandum the made on the of the com- plaint purpose. not does suffice for such It is a familiar ought maxim that what to be of record must be shown record, right record. The record which the required keep docket, and, is to is his as the authori- say, ordinarily only ties that is his and authoritative memorial, proceed- and therein must be entered all of the ings of Bonds, 833, court in cause. v. Brown 125 Ga. 54 E. is It record S. which is intended parties to afford interested official notice of all orders proceedings made and had in the cause and the existence judgments, and to enable them to steps take such further may necessary permit as be desired. To a judg- five months after claim of a rendition of a voce, docket, viva a entry, ment without a without minute memorial, kind, a a any without and without record of to judgment orally case, assert kind rendered in a bound lead controversies and uncertainties. As well babbling tongues call the bailiff or other attendants in dispute him.
Assuming, Peterson, as in effect was held Kolb v. supra, judgment, a valid, to be that need not be entered days verdict, may after within two but be entered practicable sentence, may as soon as after that it be days thereafter, done six how stands the case? courts holding though invalid, a not entered not prescribed statutory time, if within made soon as as unnecessary delay, practicable and without nevertheless in nearly it be contempo effect hold that must entered as 134 practical. proceeding fact recorded
raneous with 449, Roberts, 323, L. R. 113, 21 So. Ala. v. In Coleman a Rep. Ill, it 84, was held an Am. St. A. contempt presence of committed in the judgment of required en trial was justice in the course adjourned the. tered .before Kern, 477, day. Mundy In 74 Wash. for the trial v. 1035, delay not unreasonable. of ten was held judg Gall, 65 where W. Va. S. E. v. Cross rendition, a few after its entered within ment was time. reasonable So to be entered within was held Hickey Hinsdale, Am. Dec. 8 Mich. Mfg. Co., Tioga where it was Mich. Saunders v. Simma, *12 days, in or three and Davis v. entered within two 462, 154, Nocoli, Iowa, 97 81 Am. Dec. Knox v. 14 876, judgment Iowa, 687, was N. where the entered 66 W. Iowa, morning. Co., But Warrall Chase & the next v. 338, judgment not entered 123 W. where was N. days, And in Tomlinson until it was held invalid. three Iowa, Rep. 458, it Litze, Am. 47 N. W. St. days ninety judgment than a entered more was held that void. was here, proceeding where no be said of
But what shall of of judgment no memorial the rendition was entered and any judgment or entered until more than five months made that, quite apparent plea, and when it was after where entered, with it was not entered conform what was ruling done, court but to overcome the the district fact hearing. discharging corpus the accused on the habeas first by entry admittedly made him March docket entry judgment. is both a rendition and of a In courts of general jurisdiction practice common record and of it is term, time, judg- term or after to order entries of even pro usually ments nunc tunc. But such orders are made motion, especially on notice and if after made term time. Certainly peace, delay more than ought months, permitted pro five not to make nunc entry entry tunc judgment the rendition and with- out judgment motion notice or consent. If no was ren- entry dered him before made, certainly he had right no to render one more plea, than five months after upon postponement unless par- with the consent of the ties. Whatever contempo- was rendered him raneously plea, with the or within two thereafter changed could not be with, or interfered or new conditions imposed, without the consent the accused. 35 C. J. 677. appear, only
So far as pronounced made to contemporaneously rendered with the the accused a fine or serve 75 in the city jail, that, seen, memorial, has been rests no merely memory justice. but on the The memorandum copy imports complaint indorsed him on the no undertaking accepted by more. The which was filed and justice implies undertaking no more. The an un- promise conditional the balance of the fine within days, paid by if it was not the accused. is noth- There ing staying an to show that order was made execution of judgment. pro The first we have of that is the nunc docket, tunc wherein it is recited that “the stay granted days upon of execution for ten the de- furnishing signed by good fendant a bond two suffici- ent sureties.” undertaking by stay bond, its terms is not a not an
undertaking any stay the of accused at the end sur- upon up, do, render himself and his failure so to or other- process court, wise to hold amenable to the of the himself municipality the sureties would or to the state money. stipulated contrary, of fixed and sum To the the undertaking guaranty, nature was the of and a direct promise the balance of the fine the accused’s days, days. pay it, not within 10 but within failure to meaning purpose the not make or of the could ‘by, undertaking purport from what its terms different writing something given, pro was nunc after it months notice, motion, consent. without tunc in the record justices indulgence granted the should be Whatever liberally though peace, and of their record be formalities pro prac- viewed, a nunc tunc cannot sanction such still tice, can I call done mere error. nor what was required seen, justice by statute is
As has been ordinarily only keep docket, his memorial of which is by usually required kept proceedings, and all that to be him, proceedings in which must be entered action, requires among things, an which, other in an court rendering entry rendered and the time of 590; L. it. R. L. 16 R. 380. While the strictness C. C. superior required keeping a docket of a district pro- peace as to not observed need be him, ceedings yet what a cause before substance may dispensed required be with. And he to enter not authorities, though, the entries of held some statutory proceedings made within the such need not be time, yet are to the effect that most of the authorities nearly required con- are to be made as entries nevertheless temporaneously with the acts and the recorded and, conveniently may done, practicable, and as as is legal done, no authentic memorial of not there is when so entry judgment, the rendition or proceeding, or of may more than 5 months thereafter be one not and that notice, motion, supplied pro tunc without a nunc consent. legal opinion there was no am of
I therefore commitment, authority and that the issuance unlawfully re- detained thereunder was held accused liberty. question It is now a to what his strained thereby. prejudiced If there was extent the accused proper memorial of the rendition and en- no such the issuance of com- try as to authorize discharge mitment, obtain his was not to- the accused prejudiced by he his what extent required to show enough when made to It is and detention. arrest *14 appear that his arrest and detention were without authori- ty may and unlawful. that, Nor it be said since the accused pleaded guilty charged offense, any pro- kind of a ceeding good enough had thereafter him, for or that may complain required before he he is to show that he can- fine, go jail, the balance of the as well as he pleaded guilty. could have done when he CHERRY, appears by IJ. dissent. It undisputed evi judgment dence that entered on his docket actually pronounced identical upon the guilty. delay making The on the docket way prejudiced in no prisoner and did not invalidate judgment. 358; parte Dye, 16 C. J. Ex 32 Mont. 689; Parise, P. 304; State v. Kan. Ex parte Glavich, App. 74 Cal. 239 P. 707. justice’s granted stay docket shows that “the court days upon
of execution for ten furnishing the defendant signed by good bond sureties,” two and sufficient and the bond defendant, “having duly itself recites that been complaint, granted sentenced stay said and of execu- hereof, tion ten for from the date bonded the sum $75.00,” promise and that the sureties undertake and appear defendant “will and the above men- $75.00,” tioned sum of etc. The record shows no order of discharge release of the or substitution of the nothing stay bond but of 10 on condition therefor — furnishing testimony a bond. The oral paid gave that “he and a bond for the other $25 to be days” change paid purpose in 30 cannot the terms and bond, which effect of was introduced in evidence speaks itself. principle Flint, decided In re Utah P. court, by indefinitely suspending sentence, that “the go permitting recognizance, defendant on his own him, jurisdiction of so that it cannot loses afterwards have rearrested, him,” application and sentence has no him here. suspension present there was no at In the *15 138 kept suspense was not in a
all. Defendant state of un- or certainty pronounced an indefinite for time. Sentence was day guilty entered, stay on the same days granted upon for 10 execution condition that given. Ample quoted pre- a bond be authorities are in the vailing opinion stay to the effect that such does not de- jurisdiction prive the court of judgment, enforce its even judgment imprison- unqualified cases where the ment, which this is not. judgment pay that the defendant a fine of $75 city jail uncertainty.
serve 75 is not void for judgment popularly I think a in those words is understood imprisonment contingent upon to mean non payment interpreted of the fine. Other courts have so judgments, upheld against by similiar them as attack corpus. parte Riley, 665; 142 habeas Ex Cal. Ex parte Robbins, App. 677, 14; 27 151 parte Cal. P. Ex Gla vich, 196 Cal. P.
Our own Zundel, case of Rasmussen v. 67 Utah situation, distinguish P. dealt with a different and is present penalty able from the case. There the for the stat imprisonment ute violated was a fine not than less $200 days. judgment than not less held bad for uncer tainty was that the defendant “either a fine of $200 county spend jail.” in the The court said: upon “The in this ease was not the alternative —that appellant imprisoned failure to the fine the should be at hard paid labor until such fine had been court was authorized to —as impose 9450, Comp. section Utah Laws 1917.” prescribes supra, Section that a for a fine, costs, may or of a fine and also direct that defendant imprisoned fine, at hard labor until such or such fine costs, paid, proportion day’s imprison- are of one every ment for dollar of the fine and costs. plain
In the Zundel Rasmussen v. Case was impose days imprisonment 90i court did intend nonpayment alternative fine under sec- 9450, supra, proportion tion because the between the two proportion not the authorized the statute. In the present case, the relative amount of fine and term of imprisonment are such as to indicate the intention to im- pose imprisonment only payment to enforce fine in proportion day’s imprisonment one for each dollar fine, commitment, and this view is confirmed *16 expressly imprisoned which the defendant orders he until exceeding day shall the fine not one for each dollar of fine. go lengths support “The courts will to all reasonable judgments of inferior not courts of record” do which prescribed forms not conform to “when assailed habeas corpus.” parte Adams, 501; Ex 170 Ala. So. Church Corpus, 296. on Habeas § (Comp. own Code Utah
Our Criminal Laws § provides: 9365) departure prescribed by the form or mode from “Neither this proceeding respect any pleading any nor error code in or mis- actually invalid it shall have therein shall render it unless re-
take miscarriage justice.” in a sulted any prisoner prejudiced or harmed has not been delay complains. The he for which now entering judgment justice’s not docket did on the judgment was He when all. knew what the affect him at part recognized by paying a pronounced. He it was correctly stay of same his bond. it, recited the him, and leniency as towards an act of execution application. granted upon What- own his of course matter judgment was resolved uncertainty existed ever interpreted is, judgment times was favor; at all his imposed imprisonment fine, with alternative paid. fine was judicial principles, think confirmed that sound commitment under decisions, support prisoner held, and that which affirmed, prisoner court should be district and the re- city custody marshal, required manded to penalty wrong. for his admitted FOLLAND, expressed by I concur in the J. views Mr. Justice CHERRY. Chief v. INDUSTRIAL COMMISSION OF
PETERS UTAH April (277 408.) Decided P. No. 4740.