State ex rel Caldwell v. Skinner

• Decision Date: 05 October 1931
• Docket Number: 7314
• Citation: 238 N.W. 149,59 S.D. 68
• Parties: STATE OF SOUTH DAKOTA ex rel VEVA CALDWELL, Plaintiff, v. W.N. SKINNER, Judge of the Circuit Court of the Third Judicial Circuit within and for the County of Brookings, et al, Defendants.
• Court: South Dakota Supreme Court

59 S.D. 68

238 N.W. 149

STATE OF SOUTH DAKOTA

ex rel VEVA CALDWELL, Plaintiff, v. W.N. SKINNER,

Judge of the Circuit Court of the Third Judicial Circuit

within and for the County of Brookings, et al,

Defendants.

South Dakota Supreme Court

Original Proceeding

#7314—Alternative writ quashed, peremptory writ denied

T. R. Johnson, Sioux Falls, SD

Attorney for Plaintiff.

C. G. Aaberg, State’s Attorney, Brookings, SD

Attorney for Defendants.

Opinion Filed Oct 5, 1931

CAMPBELL, J.

Relator Veva Caldwell, who sufficiently alleges that she had not previously been convicted of crime under the laws of this state, was informed against in the circuit court of Brookings county, S. D., for the offense of “assault with intent to commit robbery,” and being duly tried, was convicted by the verdict of a jury, and on February 20, 1929, by judgment of said court duly made and entered was sentenced to a term of five years in the penitentiary. Her motion for new trial having been thereafter denied, relator appealed to this court, which affirmed the judgment of the trial court (State v. Caldwell, 235 NW 649), and relator’s application for rehearing was by this court denied on September 5, 1931, and the remittitur in said cause thereupon went down to the circuit court of Brookings county. On September 11, 1931, and before the relator had been taken into custody for the purpose of entering upon the service of the sentence imposed upon her, she applied to the judge of the circuit court who had originally tried the case, asking an order granting probation or suspension of sentence pursuant to chapter 126, Laws 1931, which had become effective July 1, 1931. The learned trial judge denied the application of the relator, and relator alleges that he denied the same “upon the express ground that the said court and the judge thereof had no authority to entertain said application or to grant probation thereon after appeal by the said defendant from its foregoing judgment and sentence and after the affirmance thereof by the Supreme Court of the State of South Dakota.” Relator does not allege (other than by such inference, if any, as may be drawn from the above allegation) that he in any manner stated or announced that he would either hear or grant said application if he thought he had jurisdiction so to do.

Under these circumstances, relator applied to this court for an alternative writ of mandamus directing the said trial judge to show cause why he should not hear, entertain, and act upon the application of relator for probation. The alternative writ issued out of this court on September 15, 1931, directing that cause be shown before this court on September 28, 1931, and incorporated therein was an order to the effect that all proceedings for the commitment of the defendant and enforcement of the sentence and judgment of the trial court be stayed and enjoined pending the further order of this court. Defendants ask denial of the writ and dismissal of the proceeding.

The matter was duly submitted to this court on the date fixed for hearing, without oral argument, and is now for our decision.

The first statute in this state purporting to authorize suspension of sentence, probation, or parole by a trial judge in the sense in which those phrases are currently employed was chapter 163, Laws 1913, subsequently amended by chapter 153, Laws 1923, by limiting its application to first offenders and barring entirely from any benefits under the act persons sentenced to jail for violation of the intoxicating liquor laws. This suspended sentence law had the consideration of this court in State ex rel. Payne v. Anderson (1921) 181 N.W. 839; State ex rel. Horner v. Taylor (1923) 196 N.W. 494; State ex rel. Callahan v. Hughes (1925) 202 N.W. 285; Ex parte Dunn (1926) 208 N.W. 224; and Friske v. Circuit Court (1927) 214 N.W. 812. The net result of those decisions was in substance a judicial determination that the Legislature had exceeded its constitutional authority in attempting to confer upon courts or judges the powers undertaken to be granted by chapter 163, Laws 1913.

Thereafter there was submitted to the people of this state by chapter 83, Laws 1929, a proposed amendment to add to article 5 of our Constitution a new section numbered 39 to read as follows: “Section 39. The Legislature may empower all Courts having jurisdiction to try offenses under the laws of this State, and the Judges thereof, to suspend sentences of persons convicted, for the first time, of crime under the laws of this State, during good behavior, and subject to such conditions and restitution as the Court or the Judge thereof may impose,” which proposed amendment was voted upon and carried at the November, 1930, general election by an affirmative vote of 81,697 over a negative vote of 76,358.

At the next session of the Legislature, pursuant to the constitutional authority thus established, there was enacted chapter 126, Laws 1931, the law now invoked by relator, providing as follows: “All Courts, having jurisdiction to try offenses under the laws of this State, and the Judges thereof, shall have power to suspend sentences of persons convicted, for the first time, of crime under the laws of this State during good behavior, subject to such conditions and restitutions as the Court or Judge thereof may impose; provided, however, that such conviction shall have occurred in the Court exercising such power.”

A reading of the statute in question, a consideration of prior legislation and decisions in this state, and an examination of relator’s application, immediately present to any inquiring mind a number of interesting speculations.

The statute reposes in the courts and judges the power “to suspend sentences.” An initial inquiry at once arises as to the meaning of this phrase. Does it mean that power is granted to suspend and defer the pronouncement and imposition of sentence? Or does it mean that power is granted to suspend the operation and execution of a sentence after the same has been pronounced and imposed? Or is the phrase applicable indifferently to either or both of such situations? Again, assuming that the phrase “to suspend sentence” means, or at least includes, suspension of the operation and execution of a sentence after pronouncement, does the law have application to a sentence legally, definitely, and unconditionally imposed and pronounced at a time prior to the effective date of the law? Assuming that power to suspend a sentence is power to suspend the execution thereof, what, if any, are the limits to the exercise of such power? Must the power to suspend execution of a sentence be exercised at the time of the pronouncement of the sentence? If not, at what point of time subsequent to the pronouncement of a sentence does the power to suspend the execution thereof terminate? More specifically, assuming that the power to suspend a sentence is the power to suspend the execution thereof after pronouncement, and assuming that the power may be exercised in relation to a sentence pronounced prior to the effective date of the law, can such power still be exercised after the convicted defendant has appealed and the judgment of conviction has been affirmed and the cause remanded for enforcement of the judgment pursuant to section 5047, Rev. Code 1919?

We think it is unnecessary for us in this proceeding, however, to pursue any of the inquiries above suggested. Assuming a resolution of all of those questions most favorable to the relator (while expressly stating that by such assumption we do not intend to determine such questions or any of them, or to express inferentially or otherwise any opinion relating to the proper determination thereof), we are nevertheless of the view that relator’s request for the mandate of this court must be denied.

Mandamus in its origin and history is prerogative in character. It will issue, under our statutes, “to compel the performance of an act which the law specifically enjoins as a duty resulting from an office, trust, or station ...” (section 3006, Rev. Code 1919), when there is not a plain, speedy, and adequate remedy in the ordinary course of law (section 3007, Rev. Code 1919). The purpose of mandamus is to compel affirmative action, and it is elementary law that before mandamus can properly issue at least three factors must coexist in the situation: First, the person or tribunal against whom the writ is sought must have power to perform the act...