Carpenter v. Berry

• Decision Date: 21 May 1948
• Citation: 59 A.2d 485
• Parties: CARPENTER v. BERRY et al.
• Court: New Hampshire Supreme Court

59 A.2d 485

CARPENTER

v.BERRY et al.

Supreme Court of New Hampshire.

May 21, 1948.

Transferred from Supreme Court, Strafford County; Wheeler, Judge.

Proceeding by Ernest A. Carpenter against Harry O. Berry and another for a writ of habeas corpus to secure petitioner's release from detention in the House of Correction of the City of Dover under a mittimus issued by the clerk of the Dover Municipal Court on a sentence imposed by such court on petitioner's conviction of wilfully neglecting and refusing to support his minor children. Transferred to the Supreme Court on petitioner's exceptions to the Superior Court's order dismissing the petition.

Petition dismissed.

Petition for a Writ of Habeas Corpus. After a hearing before the Superior Court upon an agreed statement of facts the Court dismissed the petition and the petitioner duly excepted. According to the agreed facts it appears that on December 5th, 1947 the petitioner was arrested, arraigned and tried in the Municipal Court of Dover upon his plea of not guilty for willfully neglecting and refusing to support his minor children under the provisions R.L. c. 340, § 15. He was found guilty and sentenced to serve six months in the House of Correction and to pay $20.00 weekly through the Probation Officer of the City of Dover for the support of his children, the first payment to be due December 13th, 1947. The House of Correction sentence was suspended ‘mittimus to issue at call of City Marshall.’ On December 30th, 1947 the City Marshal upon representation to him by the Probation Officer of the petitioner's non-compliance with the order called for the mittimus. No hearing was held but the Clerk of the Dover Municipal Court on the same day issued the mittimus signed by him, but without a seal, and the petitioner was delivered to the House of Correction where he is still detained to serve his six months sentence.

The petitioner contends that his detention is unlawful, first, because the mittimus could not be called legally by the City Marshal; second, that it could not be called without a hearing and the introduction of ‘competent evidence’ that there had been a wilful violation of the Court's order, and lastly, that since the mittimus bore no seal it was invalid. Other facts appear in the opinion. Transferred by Wheeler, J. Alfred Catalfo, Jr., of Dover, for petitioner.

Frank W. Peyser, Solicitor, of Rochester, for the State.

BLANDIN, Justice.

The petition for Habeas Corpus must be denied, and in so deciding we are treating the matter as though the petition were properly amended by adding an application for a Writ of Certiorari. Kruzas v. O'Dowd, 83 N.H. 173, 139 A. 580. Since calling for the mittimus was an administrative rather than a judicial function (Couture v. Brown, 82 N.H. 459, 135 A. 530) neither reason nor authority appear to prevent the Municipal Court from entrusting the performance of this act to the City Marshal who was by virtue of statute a constable and conservator of the peace. R.L. c. 65, § 9. But as was said in the Couture case, 82 N.H. at page 460, 461, 135 A. at page 531, the question whether such authority could be conferred upon him is ‘of no practical consequence’ since ‘The petitioner was not entitled as of right to any indulgence whatever. The stay of sentence was a favor to him * * * and, having accepted [it] he cannot now be heard to say that the condition on which it was granted is invalid’. See also Philpot v. State, 65 N.H. 250, 251, 20 A. 955; State v. Boston & M. R. Co., 75 N.H. 327, 333-335, 74 A. 542, and cases cited.

Although it is conceded that the case does not arise under the Probation Statute (R.L. c. 379, § 14), the respondent goes on to claim that he was entitled to a hearing upon the mittimus as a matter of right before being committed on the question of whether he had violated any of the conditions upon which his sentence was suspended. A short answer to this is that no conditions appear in the agreed statement of facts before us, but it makes no difference whether the suspension was on condition that the petitioner make his payments as ordered (see R.L. c. 340, § 18) or under the general powers which our Courts have always exercised to suspend sentences for other good reasons. See State v. Drew, 75 N.H. 402, 74 A. 875, and cases cited; Philpot v. State, supra, Sylvester v. State, 65 N.H. 193, 20 A. 954. The fundamental difficulty with the petitioner's position is that he would enlarge a mere favor into a right. He had no right to any suspension with or without conditions. Couture v. Brown, supra, Philpot v. State, supra, 65 N.H. 250, 251, 20 A. 955. Nor does it matter whether the conditions, if any, were valid or invalid because the imprisonment is not inflicted for breach of any condition of which the petitioner may be found guilty upon another hearing, but for violation of the law under which he stands convicted by the Municipal Court's finding of guilty from which he has not appealed. Couture v. Brown, supra, State v. Drew, supra, State v. Drew, 75 N.H. 604, 76 A. 191; Philpot v. State, supra, Sylvester v. State, supra. As was said in the Couture case, 82 N.H. at page 461, 135 A. at page 531. The order contemplated no ‘further hearing * * * on the part of the solicitor (City Marshall) or the court.’ Furthermore, as our Courts have repeatedly held in the line of cases bearing on this subject, the question whether the petitioner has violated any conditions is triable if at all in the Court making the order and from its decision no appeal lies. Kruzas v. O'Dowd, 83 N.H. 173, 139 A. 580; Sylvester v. State, supra; Philpot v. State, supra. See also State v. Coan, 91 N.H. 489, 23 A.2d 369. Dictum in the case of State v. Owen, 80 N.H. 426, 117 A. 814, and in the Kruzas case, if it may be said inferentially to support the petitioner's claims, is not controlling, and the Kruzas opinion makes it abundantly clear that if there is any question of a...