219 P. 194 | Or. | 1923
Lead Opinion
On July 10, 1923, Ealeigh Matthews was convicted, on his plea of guilty, of the crime of unlawfully possessing intoxicating liquor and judgment and sentence were pronounced upon him as follows:
“The above named Eolly Matthews having been brought before me on a criminal charge of unlawfully possessing intoxicating liquor, and having pleaded guilty;
“I therefore sentence said Eolly Matthews to pay a fine of $250, including costs; or in default thereof that he be confined in the County Jail for the period of 125 days; and I further sentence him to be confined in the County Jail for the period of thirty (30) days, but it is hereby ordered said jail sentence be and stand suspended during defendant’s good behavior.”
The petitioner paid the fine and was not committed to jail. On September 19, 1923, on an affidavit that petitioner had been drunk and had used indecent language, the justice, without giving him an opportunity to be heard, ordered him to be committed to jail and because of this commitment and imprisonment, which, he claims to be unlawful, he sues out this writ of habeas corpus.
The judgment of a justice of the peace imposing imprisonment in a criminal action must be
The petition contains the usual charges of conspiracy among the public officials to deny him relief in the local courts, but these charges are unsupported by any reputable proof. The recital of the contents of the affidavit in the writ, which is merely following the usual form in such cases, by no means indicates that the court accepts all these statements as true; but such a recital is the common form in all writs of habeas corpus, quo tuarranto or injunction proceedings. The writ was issued upon matters appearing in the petition, borne out by the record submitted at the same time, and which are of such public and general importance as to authorize us to take immediate cognizance of them. Especially do we take cognizance of these matters, as it is apparent
We wish to impress upon the minds of magistrates that it is their duty, when a defendant is convicted of violation of the liquor laws, or of any other crime, immediately to pronounce a direct and certain sentence, such as they deem adequate to punish the offense committed and to prevent others of like nature; and, having done so, their duties are at an end, leaving the matter of mitigation of the punishment to the executive authority, where it properly belongs: In re Webb, 89 Wis. 354 (62 N. W. 177, 46 Am. St. Rep. 846, 27 L. R. A. 356).
The petitioner is discharged.
Petitioner Discharged.
. Power of court to suspend sentence or stay execution of sentence, see notes in 26 A. L. ¡R. 3'99; 33 L. R. A. (N. S-.) 112; 39 L. R. A. (N. S.) 242; L. R. A. 1915C, 1169; L. R. A. 1918'C, 561.
Dissenting Opinion
Dissenting. — I dissent from that part of the opinion by our learned Chief Justice wherein he holds that the judgment imposing a jail sentence upon the defendant Matthews is void for uncertainty.
The sentence provides that Raleigh Matthews shall “pay a fine of $250, including costs; or, in default thereof, that he be confined in the county jail for the period of 125 days; and I further sentence him to be confined in the county jail for the period of 30 days * *
Thus far, the judgment is plain, unambiguous and certain. In short, it requires the defendant to pay
«í # # p-yp it is hereby ordered said jail sentence be and stand suspended during defendant’s good behavior. ’ ’
This language constitutes no part of the sentence: State v. Hatley, 110 N. C. 522 (14 S. E. 751). The order is void. But a void order of suspension of a valid judgment should not render void the judgment itself.
It is basic law that the sentence in every criminal cause should be definite and certain and should not rest upon any condition whatsoever.
This defendant was convicted for the violation of a penal statute. It is mandatory that punishment shall be inflicted. The court is required- to pronounce the penalty, but is not empowered to pardon or reprieve, conditionally or otherwise. The defendant was sentenced by a competent court, on account of the commission of a specific crime triable within the jurisdiction of the court, to pay a certain sum of money and to serve a given number of days in the county jail. What is indefinite about that?
The only error in the proceedings lies in the order of suspension. While there is much conflict among the decisions, the burden of authority is to the effect that no court, without a special statutory provision, has the power to suspend sentence, or execution thereof, indefinitely: Ex parte United States, 242 U. S. 27 (61 L. Ed. 129, Ann. Cas. 1917B, 355, L. R. A. 1917E, 1178, 37 Sup. Ct. Rep. 72). See notes in
Under the facts in this case, the case of Fuller v. State, 100 Miss. 811 (57 South. 806, Ann. Cas. 1914A, 98, 39 L. R. A. (N. S.) 242), is much in point. In that case it was held that a convict who had assented to a void provision in his sentence suspending it pending good behavior cannot take advantage of its invalidity when the sentence is sought to be enforced against him, nor of the fact that the original term of sentence had elapsed. There are, however, decisions to the contrary.
In this case the sentence has not been satisfied by the expiration of time, because a sentence of imprisonment in the county jail, under the provisions of our Code, “commences from the day of his delivery at such prison to the proper officer thereof, and no time during which such person is voluntarily absent * # can be estimated or counted as a part of the term for which such person was sentenced.” Or. L., §§ 2378, 2383; 3 Wharton Crim. Proc. (3 ed.), § 1867. Also see list of authorities to like effect in Fuller v. State, supra.