Alcorn v. Fellows

• Decision Date: 23 February 1925
• Citation: 102 Conn. 22,127 A. 911
• Parties: ALCORN, STATE'S ATTY., v. FELLOWS.
• Court: Connecticut Supreme Court

127 A. 911

102 Conn. 22

ALCORN, STATE'S ATTY., v. FELLOWS.

Supreme Court of Errors of Connecticut.

February 23, 1925

Appeal from Superior Court, Hartford County; George E. Hinman and Christopher L. Avery, Judges.

Application by Hugh M. Alcorn, State's Attorney for Hartford County for a writ of mandamus to compel Frank W. Fellows, a Justice of the Peace of the Town of Canton, in the County of Hartford, to issue a mittimus committing Charles M. Stevens of the town of Canton, to the Hartford county jail for the period of 15 days, or to show cause to the contrary. From a judgment dismissing the writ, the State's Attorney appeals. Error, judgment set aside, and cause remanded, with direction to issue the writ.

The application for the writ alleges in substance that on April 9, 1924, upon the complaint of a qualified grand juror, one Charles M. Stevens, of Canton, was brought before the respondent justice of the peace charged with keeping intoxicating liquors for sale, and with maintaining a place reputed to be a place where intoxicating liquors were kept for sale; that the accused pleaded guilty and was sentenced to fine and to imprisonment in the Hartford county jail for 15 days; that the respondent signed and issued a mittimus committing the accused, and delivered the mittimus to a deputy sheriff of the county for service; that on April 14th the sheriff took the accused into custody and conveyed him to the Hartford county jail in the town of Hartford; that upon arrival at the jail, and before the accused was delivered to the jailor, the respondent appeared upon the jail premises, demanded and received the mittimus tore it up and destroyed it and ordered the release of the accused; and that the acts of the respondent in destroying the mittimus and ordering the release of the accused were unlawful, were an improper interference with the execution of the sentence and judgment, and injurious to the peace and order of the state.

The return of the respondent, made after a motion to quash had been overruled, admits that the accused pleaded guilty and was fined and sentenced to 15 days in jail, and alleges that at the time of delivering judgment the respondent determined to suspend the sentence of imprisonment, but, to make the sentence more impressive, resolved to issue a mittimus and to recall the same thereafter before the accused had been committed to jail, and that the respondent intercepted and recalled the mittimus in accordance with such previous decision. The return further alleges that thereafter on May 19, 1924, the accused filed with respondent a petition that the jail sentence be suspended and that the accused be placed on probation in the custody of a probation officer; and that, on the evening of May 19th, after a hearing, the petition was granted, the jail sentence suspended, and the accused placed in the custody of a probation officer appointed for that purpose. The return also alleges that on May 20, 1924, the respondent arrived at the age of 70 years and became incapable of further acting as a judge in the cause.

The affirmative allegations of the return were denied. On final hearing, the superior court being of opinion that the respondent had jurisdiction under chapter 175, P. A. of 1921, and chapter 62, P. A. of 1923, to suspend the jail sentence in his discretion, and that his discretion could not be controlled by mandamus, dismissed the writ.

All the evidence and rulings on the final hearing are certified up on a motion to correct the finding. The facts and assignments of error are discussed in the opinion.

Hugh M. Alcorn, State's Atty., and Reinhart L. Gideon, Asst. State's Atty., both of Hartford, for appellant.

Edward J. Myers, of Hartford, for appellee.

BEACH J.

Referring first to the motion to correct the finding and assignments of error based thereon. The trial court found in paragraph 3 of the finding that at the time when the judgment of fine and imprisonment was rendered the respondent, " as justice of the peace, determined to suspend the execution of said jail sentence," and found in paragraph 6 that:

" It was the opinion of the respondent, as justice of the peace, that the interests of justice would best be served if the jail sentence were suspended before it actually went into execution."

No doubt the respondent testified that he entertained the sentiments thus attributed to him. But, on the other hand, it is admitted that the judgment orally pronounced, and evidenced by the judgment file, was that the accused be ordered to pay a fine of $400 and costs and also to be imprisoned in the common jail of Hartford county for 15 days. We are therefore of opinion that these findings, in so far as they state any determination or opinion of the respondent, as " justice of the peace," which is inconsistent with the judgment rendered, are without evidence and contrary to the indisputable evidence, for the reason that the respondent's judicial determination and opinion as justice of the peace is conclusively evidenced by his oral sentence pronounced in open court, reduced to writing in the judgment file. These two findings are corrected by erasing therefrom the words " as justice of the peace," and so corrected they declare no more than the personal and unofficial state of the respondent's mind.

In paragraph 7 it is found that:

" On April 14, 1924, the respondent at his home in Collinsville in the town of Canton, entered upon his original file and record that the jail sentence was suspended."

We are asked to substitute for this paragraph 4 of the draft finding, and do so to the extent of adding to paragraph 7 the words, " This entry was made without notice or hearing," such being the admitted fact. One other minor correction is hereafter referred to. Other corrections asked for are not deemed essential to the determination of the cause, or relate to matters already appearing on the pleadings or in the file of the justice.

We pass now to a consideration of the legal effect of the respondent's acts subsequent to the rendition of the original sentence and judgment. The dramatic appearance of the respondent at the Hartford county jail on the morning of April 14th, his seizure and destruction of the mittimus and his verbal declaration that the jail sentence was suspended, had, of course, no effect at all in suspending the jail sentence; not only because these acts were done quite outside of the geographical limits of the respondent's criminal jurisdiction as a justice of the peace of the town of Canton (section 6542, G. S.), but also because none of the fundamental essentials of judicial determination were observed. For all the purposes of this case the seizure and destruction of the mittumus and declaration that the jail sentence was suspended were the acts of a bystander.

In paragraph 8 the court finds that the acts above recited were done by the respondent " after entering the record of suspension in Canton" ; but the respondent, who was the only witness on the point, testified, in answer to the only question asked on the point, that the entry was made after he tore up the mittimus. Paragraph 8 is therefore corrected, as requested, by erasing therefrom the words last above quoted. This correction is made merely to preserve the actual sequence of events, because it is manifest for reasons already indicated that no justice of the peace, nor any judge of an established court, has jurisdiction to suspend a sentence pronounced in open court by making an entry on the file in his own home without notice or hearing. Thereafter, on April 23, 1924, the state's attorney brought this application for an alternative writ of mandamus to compel the respondent to issue another mittimus; the respondent filed a motion to quash, which was heard, and on May 14, 1924, the motion to quash was overruled by Hinman, J., in a considered memorandum of decision concluding in these words:

" The resulting conclusion is that execution of the sentence imposed by the respondent justice holding court, has not been lawfully or effectively suspended and hence stands unaffected by the attempted suspension. It is therefore the duty of the respondent to issue a mittimus effectuating said sentence and such issuance is a ministerial act controllable by mandamus."

Being thus notified that the jail sentence was still in force, and that, on the facts alleged in the application, the alternative writ was about to be issued, Stevens, on May 19th, filed a petition with the respondent, based on chapter 175, P. A. of 1921, praying for a hearing, for a suspension of the jail sentence, and for his commitment to the custody of a probation officer. Swift action was necessary, not only to anticipate the issuance of the writ, but also because the respondent would become 70 years of age on the next day, May 20th. Notice was given to the grand juror who made the original complaint, and, after a hearing on the evening of May 19th, the respondent formally suspended the jail sentence and committed Stevens to the custody of a probation officer appointed for that purpose. On May 20th, the alternative writ was issued, and on that day the respondent became incapable of holding his office as justice of the peace.

The questions remaining for discussion are: First, whether the trial court erred in holding that chapter 175, P. A. of 1921, and chapter 62, P. A. of 1923, apply to justices of the peace; and, second, whether the respondent's constitutional incapacity prevents him from issuing a mittimus after reaching the age of 70 years.

The material portion of the Act of 1921 reads as follows:

" In cases within its jurisdiction, except in cases after commitment to the state prison, or state reformatory, any criminal court or the judge holding such

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