Ex parte Dunn
| Decision Date | 05 April 1926 |
| Docket Number | 6178 |
| Citation | 208 N.W. 224,50 S.D. 48 |
| Parties | EX PARTE R. S. DUNN, Petitioner. |
| Court | South Dakota Supreme Court |
Original Proceedings
Application for a writ of habeas corpus
#6178--Application denied
Mundt & Mundt, of Sioux Palls, SD
Attorneys for Appellant.
Buell F. Jones, Attorney General
R. F. Drewry, Assistant Attorney General, Pierre, SD
Attorneys for Respondent.
Opinion filed April 5, 1926
R. S. Dunn applies to this court for a writ of habeas corpus to discharge him from the custody of the sheriff of Minriehaha county.
In the circuit court of Minnehaha county, on July 1, 1924, the applicant entered a plea of guilty to an information charging him with having embezzled $203 of funds belonging to John Morrell & Company. After accepting the plea, the judge of said circuit court stated to the record that the time for pronouncing sentence would be fixed later.
It appears that no formal order postponing the time for pronouncing sentence was ever made; nor do the minutes of the court show any further reference to the case until December 18, 1925, when the said court issued a bench warrant directing that the applicant be brought before it for sentence. After certain appearances before that court, at each of which applicant's counsel objected to the fixing of a time for sentence, and to the pronouncing of sentence, the circuit court sentenced the applicant to one year's imprisonment in the penitentiary.
Applicant's objection to fixing of time for sentence, and to the pronouncing of sentence, was upon the ground that, by postponing the pronouncing of sentence for an unreasonable and indefinite time, the circuit court lost jurisdiction to sentence the applicant upon his plea, and that the sentence under which the applicant is held in custody is void for want of jurisdiction.
In the first place, appellant's counsel contend that section 4948, R. C., by providing that the time appointed for pronouncing judgment "must be at least two days after the verdict, if the court intends to remain in session so long; or, if not, at as remote a time as can reasonably be allowed," shows it to be the intent of the law that judgment should be pronounced during the term at which the verdict or plea is entered.
We cannot agree with this contention. The provisions cited are intended to fix the minimum, and not the maximum, limit for the pronouncing of judgment. They are intended to prevent hasty and ill considered judgments, and to give defendants time for such further proceedings as they may deem necessary to protect their rights. The identical statute has been so construed, and applicant's contention rejected by the California court. People v. Felix, 45 Cal. 163.
Applicant's further contention is that by an indefinite postponement of sentence the court loses jurisdiction over the defendant, and has no jurisdiction to enter judgment. On this question there is considerable conflict of authority, and applicant's counsel cite authorities so holding. Some of these decisions are from states having no statutes giving courts the power to suspend sentences. Others are cases in which the question is the converse of that involved in the instant case; that is, cases in which the trial courts are sought to be required to proceed with the enforcing or pronouncing of judgment, as in State ex rel Callahan v. Hughes, 202 N.W. 285; State ex rel Payne v. Anderson, 181 N.W. 839.
But in this state we have statutory provisions which purport, at least, to give courts the power to suspend sentences during good behavior, and in some cases to parole defendants. Sections 4968 and 4969 of the Revised Code, now amended by chapter 153, Laws of 1923, purport to give these powers. But in State ex rel Payne v. Anderson, supra, this court held that, if construed as giving the power to suspend the execution of sentences after judgments have been entered, such application of the statute would render it unconstitutional as infringing upon the pardoning power vested in the Governor by section 5, article 4, of the Constitution. And the court reiterated this rule in State ex rel Horner v. Taylor, 196 N.W. 494. The effect of the statutes, if applied to the indefinite postponement of the pronouncing of sentence, was not passed upon in that case, and has never been passed upon by this court.
The showings made in the instant proceeding are to the effect that the trial court was induced to postpone the pronouncing of judgment by the fact that the applicant herein had entered into a written agreement with the state's attorney of Minnehaha county, wherein the applicant agreed, among other things, to repay to John Morrell & Co. "the moneys embezzled by him," at the rate of $50.00 per month. Applicant contends that this meant the repayment by him of the $203 which he was charged with embezzling, while the state's attorney contends that it was meant to include additional funds, amounting in the aggregate to about $1,600. The trial court seems to have adopted the latter view. It does not appear that this writing was ever made a part of the court record, but it is conceded by both parties that it was before the judge when he postponed the pronouncing of sentence, and, at the time when he did finally pronounce judgment, said judge made a statement to the record wherein he gave applicant's failure to make restitution of some $1,600 as one of his reasons for overruling the objections to pronouncing of sentence.
The above-mentioned written agreement, as shown by the sheriff's return to the writ, contains, as its final provision, the following:
"And in the event that the defendant shall violate any one of said conditions he shall be immediately taken into custody by the sheriff of Minnehaha county, and taken before the judge of the circuit court of Minnehaha county, South Dakota, for sentence."
Not only does this provision strongly support the inference that it was the intent of the court that the defendant should never be brought before it for sentence, if he complied with the terms of the...
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