Couture v. Brown

• Decision Date: 07 December 1926
• Citation: 135 A. 530
• Parties: COUTURE v. BROWN, Sheriff.
• Court: New Hampshire Supreme Court

135 A. 530

COUTURE

v. BROWN, Sheriff.

Supreme Court of New Hampshire. Coos.

Dec. 7, 1926.

Exceptions from Superior Court, Coos County; Burque, Judge.

Petition by Ernest Couture for writ of habeas corpus against George W. Brown, Sheriff. The petition was denied, and petitioner brings exceptions. Exceptions over ruled.

Petition for a writ of habeas corpus. 'The defendant is the sheriff of Coos county. On May 23, 1925, the petitioner was tried by jury for a violation of the prohibitory law (Laws 1917, c. 147), and found guilty. The sentence of the court was as follows:

"Fine of $100 and 30 days in jail; jail sentence suspended on payment of fine and costs; mittimus to issue on call of county solicitor."

On June 9, 1926, the solicitor requested the clerk to issue a mittimus based on this sentence. A mittimus was issued wholly in compliance with this request, without notice to the petitioner, and without hearing. The detention under this mittimus constitutes the restraint complained of.

On these facts, the petition was denied by Burque, J., subject to the petitioner's exception.

Ovide J. Coulombe, of Berlin, for petitioner.

Harry G. Noyes, Sol., of Berlin, for defendant.

MARBLE, J. Although in many jurisdictions the power of the court to suspend execution of sentence has been denied as an infringement on the pardoning power of the executive, that doctrine has never prevailed in this state. State v. Drew, 75 N. H. 402, 74 A. 875; Philpot v. State, 65 N. H. 250, 20 A. 955; Sylvester v. State, 65 N. H. 193, 20 A. 954.

The petitioner concedes that this is true. but contends that the order relating to the issuance of the mittimus constitutes a deputation of judicial authority, and is therefore void. He also claims that this question was not passed upon in State v. Drew, supra. One of the specific grounds of complaint in State v. Drew was that the court had attempted to delegate judicial power to the county solicitor. 209 Briefs and Cases, 1, 14. This question was argued at length in the petitioners' brief, and the opinion holds that the court "had power to make the part of the order complained of." Any possible doubt, however, that the question was definitely decided in that case is resolved by an examination of the later case of State v. Drew, 75 N. H. 604, 76 A. 191. The main contention there advanced was that the act of the solicitor was invalid under the rule of Jaffrey v. Mt. Vernon, 8 N. H. 436, as "an assumption of judicial power." 272 Briefs and Cases, 269. The case held that the question presented had been decided in State v. Drew, 75 N. H. 402, 74 A. 875.

Orders like that under discussion have been common in this state for many years, and have afforded a just and convenient method of administering the criminal law. They do not contemplate judicial action in the sense of a further hearing either oh the part of the solicitor or the court. Enforcement of the sentence is merely postponed to become effective at the solicitor's request. Under such circumstances, calling for the mittimus would appear to be an exercise of administrative, rather than judicial, power. State v. Corron, 73 N. H. 434, 462, 62 A. 1044, to Ann. Cas. 486.

But whether such authority, whatever its nature, can properly be conferred upon a county solicitor is a question of no practical consequence in the case at hand, nor does it matter if the present solicitor, in exercising that authority, acted virtually as a probation officer. The petitioner was not entitled as of right to any indulgence whatever. The stay of sentence was a favor to him (Philpot v. State, 65 N. H. 250, 251, 20 A. 955), and, having accepted that favor, he cannot now he heard to say that the condition on which it was granted is invalid (State v. Sterrin. 78 N. H. 220, 222. 93 A. 482; State v. Railroad, 75 N. H. 327, 333-335, 74 A. 542, and cases cited).

"It is necessary to remember that the defendant has been convicted; that the court has the power to inflict the full measure of punishment; that if n defendant, thus in peril of suffering the full penalty of the law, is not visited with it, many things may happen favorable to him, while nothing worse than his present plight can possibly happen. If a defendant...