In re Application of Jennings

• Citation: 46 Idaho 142,267 P. 227
• Decision Date: 24 April 1928
• Docket Number: 5195
• Parties: In the Matter of the Application of H. C. JENNINGS for a Writ of Habeas Corpus
• Court: United States State Supreme Court of Idaho

267 P. 227

46 Idaho 142

In the Matter of the Application of H. C. JENNINGS for a Writ of Habeas Corpus

No. 5195

Supreme Court of Idaho

April 24, 1928

HABEAS CORPUS-REVIEWED BY SUPREME COURT-CRIMINAL LAW-SENTENCE-CONSTRUCTION-DELAY IN EXECUTION.

1. Supreme court has appellate jurisdiction under C. S., sec 7152, in habeas corpus proceedings brought originally in district court.

2. County court had jurisdiction to impose $200 fine and ninety-day jail sentence for a violation of prohibition laws and such part of sentence was valid, though attempt to exercise power of parole constituted a nullity.

3. Where a sentence consists of a void portion and a valid portion, which are severable, courts will give effect to valid portion.

4. An order suspending sentence without authority, made part of judgment or attached to it, is surplusage and will be disregarded.

5. Where probate court imposing sentence, consisting of $200 fine and ninety-day jail sentence, attempted to exercise power of parole without authority, it had power to require execution of original judgment thereafter at a time when term of imprisonment, specified in judgment, had expired, since defendant acquiescing in postponement of performance will not be permitted to complain of delayed commitment.

APPEAL from the District Court of the Eleventh Judicial District for Jerome County. Hon. Hugh A. Baker, Judge.

Habeas corpus. Application for writ denied. Affirmed.

Affirmed.

M. L. Lewis, for Plaintiff.

My first contention is that the judgment is a unit, and not separable. (Ex parte Kelly, 65 Cal. 154, 3 P. 673, wherein the California court said: "Now the judgment is a unit, and if one portion of it is without jurisdiction of the justice the judgment is void. Further, what authority has this court to say on an application for discharge under the writ of habeas corpus that the judgment of the court is another than the judgment rendered.")

All judgments and sentences in criminal cases take effect and begin to operate from the date of their entry, unless a different time be fixed by the court in the judgment itself. (Jones v. Territory, 4 Okla. 45, 43 P. 1072; Ex parte Clendenning, 22 Okla. 108, 132 Am. St. 628, 97 P. 650, 19 L. R. A., N. S., 1041, and citations.)

If after conviction and sentence any court, whether of general or limited jurisdiction, permits the convict to go at large without day, it can never thereafter issue a mittimus for his commitment. In such case, having completed its judicial functions, it has voluntarily surrendered all further control over the cases and person. (Tuttle v. Lang, 100 Me. 123, 60 A. 892.)

Frank L. Stephan, Attorney General, and H. O. McDougall, Assistant Attorney General, for the State.

No appeal lies from an order of the district court denying an application for a writ of habeas corpus where prisoner is held under criminal process and hence this court is without jurisdiction. (Jain v. Priest, 30 Idaho 273, 164 P. 364; In re Knudtson, 10 Idaho 676, 79 P. 641; C. S., chap. 330, sec. 9275; Const., art. 5, sec. 9; In re Tom Tong, 108 U.S. 556, 28 S.Ct. 871, 27 L.Ed. 826.)

Judgment in excess of the power of the court to impose is void only to the excess and is valid to the extent that the court had power to impose. (In re Chase, 18 Idaho 561, 110 P. 1036; In re Setters, 23 Idaho 270, 128 P. 1111; In re Bottjer, 45 Idaho 166, 260 P. 1095; In re Erickson, 44 Idaho 713, 260 P. 160; State v. Ensign, 38 Idaho 539, 223 P. 230.)

A void and unauthorized attempt by a court to suspend the execution of a sentence in a criminal case does not prevent a subsequent execution thereof. (State v. Ensign, supra; Ex parte Collins, 8 Cal.App. 367, 97 P. 188; Massey v. Cunningham, 169 Ark. 410, 275 S.W. 737; Ex parte Gouvia, 45 R. I. 254, 121 A. 389; McLaughlin v. Etchison, 127 Ind. 474, 27 N.E. 152; Egbert v. Tauer, 191 Ind. 547, 132 N.E. 370, 134 N.E. 199; 16 C. J. 1335, 1336.)

GIVENS, J. Budge, Taylor and T. Bailey Lee, JJ., concur. WM. E. LEE, C. J., Concurring in Part and Dissenting in Part.

OPINION

GIVENS, J.

The petitioner was convicted of a violation of the prohibition laws in the probate court of Jerome county and the following judgment was rendered:

"It is therefore ordered by me that the defendant shall pay a fine of $ 200 together with the costs of this case in the amount of $ 5.40 and be committed to the county jail of Jerome County, Idaho, for a period of 90 days, said jail sentence to be suspended when the aforesaid fine and costs are paid.

"Provided, however, that the said suspension of jail sentence be in the nature of a parole to the sheriff of Jerome County, Idaho, and if the said sheriff shall, at any time, have reason to believe that the said defendant, H. C. Jennings, is violating the prohibition law, and so reports to this court, it shall be deemed a violation of this judgment and the said jail sentence shall immediately take effect."

This was dated April 21, 1927. The next day the court added the following to the docket under the head of "Note":

"April 22, 1927, the defendant, H. C. Jennings, is hereby paroled until November 1, 1927, upon the condition that he give a note for $ 205.40, being the amount of said fine and costs; the said note to be secured by a chattel mortgage on the crops growing or about to be grown on the lands farmed by the said H. C. Jennings.

"The receipt of said note and mortgage is hereby acknowledged.

"W. B. SUMMER, Probate Judge."

Evidently the note was not paid and on January 13, 1928, petitioner obtained a temporary restraining order enjoining the treasurer of Jerome county from enforcing the chattel mortgage. On the following day the judge of the probate court issued a commitment directing the sheriff to confine the petitioner in the county jail of Jerome county in accordance with the judgment quoted above, and at the same time issued a writ of execution against petitioner's property. Petitioner was taken into custody forthwith and has ever since been detained.

An application for a writ of habeas corpus was denied by the district court of Jerome county and this proceeding is an appeal from that order denying the writ.

It is urged that that order is not such a "final judgment" as may be appealed under C. S., sec. 7152. In Winnovich v. Emery, 33 Utah 345, 93 P. 988, 991, a well-considered case, this contention was urged and the court said:

"The test of finality for the purpose of an appeal, therefore, is not necessarily whether the whole matter involved in the action is concluded, but whether the particular proceeding or action is terminated by the judgment."

We conclude that this court has appellate jurisdiction in habeas corpus proceedings brought originally in the district court. (Martin v. District Court, 37 Colo. 110, 119 Am. St. 262, 86 P. 82; Ex parte Petitt, 84 Kan. 637, 114 P. 1071; In re Hicks, 20 Mich. 129; State v. Superior Court, 99 Wash. 619, 170 P. 130, L. R. A. 1918C, 921; see, also, 29 C. J. 183.) This, of course, does not conflict with nor deprive the court of its original jurisdiction granted by the constitution.

Appellant contends that the judgment of the probate court is void. Respondent concedes that that portion of the judgment wherein the court attempted to exercise the power of parole is an absolute nullity.

The court had complete jurisdiction to impose the fine and imprisonment and that part of the sentence was therefore valid. It is a general rule that where a sentence consists of a void portion and a valid portion, which are severable, the courts will give effect to the valid portion. (Ex parte Bottjer, 45 Idaho 168, 260 P. 1095; Ex parte Erickson, 44 Idaho 713, 260 P. 160; In the Matter of Setters, 23 Idaho 270, 128 P. 1111; In re Chase, 18 Idaho 561, 110 P. 1036.)

An order suspending sentence without authority, made part of a judgment or attached to it, is surplusage and will be disregarded. (Morgan v. Adams, 226 F. 719; State v. Drew, 75 N.H. 402, 74 A. 875; State v. Abbott, 87 S.C. 466, Ann. Cas. 1912B, 1189, 70 S.E. 6, 33 L. R. A., N. S., 112; Reese v. Olsen, 44 Utah 318, 139 P. 941.)

The remaining question is whether the probate judge had the power to require the execution of the original judgment, in so far as it was valid, long after the judgment was rendered and after the time when the term of imprisonment specified in the judgment had expired.

There is a conflict of authority but a consideration of the cases leads us to believe that by the great weight of authority, where the court makes an unauthorized order suspending the execution of the sentence imposed by the judgment, such order does not prevent the subsequent enforcement of the valid portion of the sentence at a later date.

Some of the courts which oppose this view take the position that the sentence begins to run as soon as it is imposed and ends when the time of imprisonment mentioned therein has expired. ( Corporate Authorities of Scottsboro v. Johnston, 121 Ala. 397, 25 So. 809; In re Markuson, 5 N.D. 180, 64 N.W. 939; In re Webb, 89 Wis. 354, 46 Am. St. 846, 62 N.W. 177, 27 L. R. A. 356.)

It is held by other courts that jurisdiction is lost where the prisoner is permitted to go free after sentence, and that thereafter the court has no power to issue a commitment. ( United States v. Wilson, 46 F. 748; Tuttle v. Lang, 100 Me. 123, 60 A. 892; Ex parte Clendenning, 22 Okla. 108, 132 Am. St. 628, 97 P. 650, 19 L. R. A., N. S., 1041.)

One of the best considered cases upholding the right of a court to issue a commitment on a judgment rendered some time before is State v. Abbott, supra. The facts in that case were very similar to those in the case at bar. Replying to the objections indicated above, urged by those courts opposing this view, the court...