65 N. H. 193 Sylvester v State

• Decision Date: 26 July 1889
• Citation: 20 A. 954
• Parties: 65 N. H. 193 SYLVESTER v STATE.
• Court: New Hampshire Supreme Court

20 A. 954

65 N. H. 193 SYLVESTER v STATE.

Supreme Court of New Hampshire. Grafton.

July 26, 1889.

Petition for a writ of certiorari. Facts agreed. September 3, 1887, Sylvester, being prosecuted in the police court of Littleton for being a common seller of spirituous liquor, pleaded guilty, and was sentenced to pay a fine of $100, and costs, and to be committed to jail one day, with an agreement, made by him and the complainant, and assented to by the court, that the sentence should not be enforced while he did not sell intoxicating liquor. This disposition of the case was duly entered on the record, and the respondent was released from custody. November 12, 1888, a petition signed by 20 citizens of Littleton was presented to the court, reciting the record, averring Sylvester's continued violation of the liquor law, and asking that the sentence be enforced. November 23, 1888, Sylvester and his counsel were informed by notices signed by the petitioner's counsel that, at the December term, the police court would be asked to issue a mittimus upon the sentence. At the December term, the petitioners appeared by counsel, and moved that a mittimus be issued. The respondent appeared by counsel, and, by agreement, the case was postponed to 1 o'clock p. M., December 10th, when the respondent did not appear in person, or by counsel. December 10th, at 2 p. M., the court heard evidence offered in support of the motion, and, being satisfied that Sylvester had not performed the condition on which the enforcement of his sentence was suspended, but had sold intoxicating liquors, ordered that a mittimus be issued. The evidence was proof of searches, seizures, sales, and a federal license. There was no evidence that he had been convicted of a violation of the liquor law after September 3, 1887. December 11, 1888, on Sylvester's motion, the mittimus was stayed, to enable him to be heard upon an application for an appeal from the order granting the mittimus. The court held that he was not entitled to an appeal.

Bingham, Mitchell & Bachellor, for plaintiff. Reinich & Reinich, for the State.

DOE, C. J. "It has long been a common practice in this commonwealth, after verdict of guilty in a criminal case, when the court is satisfied that, by reason of extenuating circumstances, or of the pendency of a question of law in a like case before a higher court, or other sufficient cause, public justice does not require an immediate sentence, to order, with the consent of the defendant, and of the attorney for the commonwealth, and upon such terms as the court, in...