Ex Parte Bugg

• Decision Date: 01 April 1912
• Parties: Ex Parte BUGG.
• Court: Missouri Court of Appeals

145 S.W. 831

Ex Parte BUGG.

Springfield Court of Appeals. Missouri.

April 1, 1912.

1. CRIMINAL LAW (§ 1001)—SENTENCE —POSTPONEMENT—POWER OF COURT.

In absence of statute, a court cannot indefinitely postpone execution of a sentence; to do so being to usurp the pardoning power of the executive.

2. PARDON (§ 4)—SENTENCE.

In the absence of a statute, a jail sentence imposed can only be satisfied by compliance with its terms, so that the release from custody of one sentenced to the county jail by the judge in order to permit him to change climate to prevent impending disease would not excuse or take the place of the serving of sentence.

3. CRIMINAL LAW (§ 1216)—SENTENCE—SUSPENSION.

Under Rev. St. 1909, § 5291, a stay of execution cannot exceed 90 days, and the law contemplates that the imprisonment shall begin at once after final judgment imposing a jail sentence, unless execution is stayed or accused is paroled. Section 5261 requires accused to be present in court when sentence is pronounced, and section 5266 requires the clerk, as soon as may be, to deliver to the sheriff a transcript of the entry of conviction and of the sentence, and requires the sheriff to execute it. Petitioner was sentenced to jail for six months, nearly three years ago; but before he had begun to serve his sentence he was released from jail by an order of court upon a showing that he was contracting tuberculosis, so as to permit him to change climate. Held, that mere delay in inflicting punishment is not sufficient ground for relieving a prisoner from serving sentence, unless the delay had been so great that society would receive no benefit from the enforcement of the penalty, and, under the circumstances, petitioner would not be compelled to serve out the jail sentence.

4. MANDAMUS (§ 71)—PURPOSE OF WRIT.

An officer who neglects or refuses to perform his duty may be compelled to do so by mandamus.

Application by Ben Bugg for habeas corpus. Petitioner discharged.

J. L. Van Wormer, of West Plains, for petitioner. W. H. D. Green, Pros. Atty., of West Plains, for respondent.

COX, J.

Petitioner is imprisoned in the Howell county jail at West Plains under a capias execution under a judgment of conviction in the Howell county circuit court upon a charge of illegally selling liquor, and prosecutes this writ to secure his release, contending that his imprisonment is illegal.

The facts connected with his imprisonment are as follows: At the December term, 1908, of the Howell county circuit court, and on January 18, 1909, petitioner was convicted in cases Nos. 43 and 54 on that docket upon the charge of illegally selling liquor. In case No. 43 a fine of $300 was assessed. In case No. 54 the punishment was fixed at six months in jail. Judgment in regular form was rendered in each case, and petitioner then imprisoned in case No. 43 for failure to pay the fine and costs in that case. He remained in jail under this judgment until April 16, 1909, at which time it was feared he was contracting tuberculosis, and upon the advice of the county physician and the prosecuting attorney the court, then in session, made an order for his release from jail, as follows: "On this day upon recommendation of the prosecuting attorney and the certificate of the county physician, Dr. D. J. Nichols, it is ordered by the court that further punishment herein be suspended, that defendant may seek a change of climate." This order was made at a term subsequent to the one at which the conviction was had and judgment rendered. No order was made in case No. 54 in which a jail sentence of six months was imposed. On April 19, 1909, petitioner with his wife left West Plains to seek a change of climate and went to Western Kansas, where he remained until about December 25, 1910, when he returned to West Plains and remained there until March 30, 1911, when he again went West, this time to California, where he remained until November 15, 1911, when he again returned to West Plains and engaged in assisting his father in the hotel business, where he remained until February 23, 1912, at which date a capias execution was issued upon the judgment in case No. 54 imposing a jail sentence of six months, and he was imprisoned under that execution and still remains in custody.

It is contended that the court had no power to order a suspension of the punishment adjudged against defendant and that the lapse of time now entitles him to a release. The right of a court to indefinitely suspend sentence after conviction or execution after judgment has been a source of much controversy in the courts, and the authorities are anything but harmonious. The right of a court to indefinitely suspend sentence after conviction is upheld in New York (People ex rel. v. Court of Sessions, 141 N. Y. 288, 36 N. E. 386, 23 L. R. A. 856), Massachusetts (Com. v. Dowdican's Bail, 115 Mass. 133), New Hampshire (Sylvester v. State, 65 N. H. 193, 20 Atl. 954), North Carolina (State v. Crooke, 115 N. C. 760, 20 S. E. 513, 29 L. R. A. 260), New Jersey (State v. Addy, 43 N. J. Law, 113, 39 Am. Rep. 547), Mississippi (Gibson v. State, 68 Miss. 241, 8 South. 329), California (People v. Patrick, 118 Cal. 332, 50 Pac. 425), and Florida (Ex parte Williams, 26 Fla. 310, 8 South. 425). This power of the courts has been denied in Michigan (Weaver v. People, 33 Mich. 296; People v. Brown 54 Mich. 15, 15 N. W. 571), Wisconsin (In re Webb, 89 Wis. 354, 62 N. W. 177, 27 L. R. A. 356, 46 Am. St. Rep. 846), Georgia (Neal v. State, 104 Ga. 509, 30 S. E. 858, 42 L. R. A. 190, 69 Am. St. Rep. 175), North Dakota (In re Markuson, 5 N. D. 180, 64 N. W. 939), Illinois (People ex rel. Smith v. Allen, 155 Ill. 61, 39 N. E. 568, 41 L. R. A. 473), federal court (U. S. v. Wilson [C. C.] 46 Fed. 748), and in this state (State v. Hockett, 129 Mo. App. 639, 108 S. W. 599).

On the question of the power of the court to indefinitely suspend execution after sentence and judgment, the conflict is not so great. This power has been upheld in North Carolina (State v. Whitt, 117 N. C. 804, 23 S. E. 452); but the weight of authority seems to be largely against this proposition, and to our mind it is clear, in the absence of a statute authorizing it, to permit a court after judgment is pronounced to indefinitely postpone its execution is in effect to permit the court to usurp the pardoning power which is lodged elsewhere and cannot be upheld upon either reason or authority. In re Webb, 89 Wis. 354, 62 N. W. 177, 27 L. R. A. 356, 46 Am. St. Rep. 846; Neal v. State, 104 Ga. 509, 30 S. E. 858, 42 L. R. A. 190, 69 Am. St. Rep. 175; State v. Voss, 80 Iowa, 467, 45 N. W. 898, 8 L. R. A. 767.

Our conclusion is that the order of the court in case No. 43 suspending further punishment therein was void, and the release of the petitioner thereunder unwarranted in law. The rights of the petitioner are therefore to be determined without giving any consideration to the order of the court, and he stands before this court exactly as he would if the sheriff had voluntarily released him without any order of the court. Viewing the case from this standpoint, the first question which presents itself is whether in contemplation of law the sentence had been complied with. It has been held...