36 So. 703 (La. 1904), 15,207, State ex rel. Mioton v. Baker

Docket Nº:15,207
Citation:36 So. 703, 112 La. 801
Opinion Judge:LAND, J.
Party Name:STATE ex rel. MIOTON v. BAKER, Judge
Attorney:Hamilton Numa Gautier, Barnard Bee Howard, and Adams & Otero, for relator. Walter Guion, Atty. Gen., and Chandler Clement Luzenburg, Dist. Atty. (Philip H. Mentz and Robert Hardin Marr, of counsel), for respondent.
Case Date:May 09, 1904
Court:Supreme Court of Louisiana
 
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Page 703

36 So. 703 (La. 1904)

112 La. 801

STATE ex rel. MIOTON

v.

BAKER, Judge

No. 15,207

Supreme Court of Louisiana

May 9, 1904

Application by the state, on the relation of E. J. Mioton, for writs of certiorari and prohibition to Joshua G. Baker, judge section A, criminal district court. Application dismissed.

Hamilton Numa Gautier, Barnard Bee Howard, and Adams & Otero, for relator.

Walter Guion, Atty. Gen., and Chandler Clement Luzenburg, Dist. Atty. (Philip H. Mentz and Robert Hardin Marr, of counsel), for respondent.

OPINION

[112 La. 802] LAND, J.

This proceeding is a sequel to the dismissal of the relator's appeal by this court in the case of State of Louisiana v. Eugene J. Mioton (No. 15,164) 36 So. 314, 1 wherein defendant was prosecuted for violating Act No. 34, p. 42, of 1902, entitled "An act making it a misdemeanor to desert or willfully neglect to provide for the support and maintenance by any person of his wife or minor children in destitute or necessitous circumstances and to provide a penalty therefor."

We held in that case that the order issued by the court, after conviction, that defendant pay a certain sum weekly to his wife, was not a sentence under the statute, but a suspension thereof, and therefore the appeal was premature.

In the case of the State v. Cucullu, 110 La. 1087, 35 So. 300, the court held that a party accused of violating Act No. 34, p. 42, of 1902, was without interest to attack the proviso empowering the judge, in his discretion, to order the payment by defendant of a certain sum weekly to his wife, sentence in the meantime to be suspended, because such provisions are entirely in the interest of the parties accused, and subject to their acceptance.

The suspension of sentence in such cases is a matter of grace dependent on the discretion of the court, and the accused is left free to accept or reject the proposition to pay alimony.

[112 La. 803] If the accused declines to pay, he is not punished for disobedience of the order of court, but is sentenced for his antecedent violation of the provisions of the statute. The proviso authorizes a compromise in the interest of the wife and children.

This view of the nature of the proviso disposes of the contentions of the relator, which assumes that it provides for an additional punishment. We held in the Cucullu Case that...

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