In re Nottingham

• Decision Date: 28 May 1928
• Docket Number: 12099.
• Citation: 268 P. 587,84 Colo. 123
• Parties: In Re NOTTINGHAM.
• Court: Colorado Supreme Court

268 P. 587

84 Colo. 123

In Re NOTTINGHAM.

No. 12099.

Supreme Court of Colorado

May 28, 1928

Rehearing Denied June 18, 1928.

Department 2.

Error to District Court, Garfield County; John T. Shumate, Judge.

Application by G. C. Nottingham for a writ of habeas corpus, prayed to be directed to the Sheriff. Judgment quashing the writ, and petitioner applies for supersedeas.

Judgment affirmed.

C. W Darrow and Sadie H. Korn, both of Glenwood Springs, for plaintiff in error.

Wm. L Bostright, Atty. Gen., Wm. W. Gaunt, Asst. Atty. Gen., and Frank Delaney, Dist. Atty., of Glenwood Springs, for the people.

BUTLER J.

Error to a judgment quashing a writ of habeas corpus sued out by G. C. Nottingham.

An information was filed in the county court of Garfield county charging Nottingham with carrying concealed weapons. On May 4, 1927, Nottingham pleaded guilty, and was sentenced to imprisonment at hard labor for six months 'from this date.' The court, at the same time, undertook, without any objection on the part of Nottingham, to suspend sentence during good behavior, by adding to the sentence these words:

'And it is further considered by the court that the sentence to jail be suspended pending good behavior from this date to the 1st day of January, A. D. 1929. That on any disturbance created by or engaged in by the said defendant, he be confined for the full period of his sentence.'

On January 24, 1928, in the same court, a jury found Nottingham guilty of assault and battery, and the court sentenced him to pay a fine of $10 and the costs of the proceeding. At the same time the court made a finding in the former case to the effect that Nottingham had 'violated the terms and provisions of his parole,' and ordered that he be confined in jail for the period of the sentence theretofore imposed. A mittimus was issued, and Nottingham was taken into custody. On his application to the district court, there was issued a writ of habeas corpus, directed to the sheriff. The sheriff made his return; Nottingham replied thereto; whereupon the sheriff moved to quash the writ, which motion the court sustained.

The question that we are urged to decide is whether or not, on the showing made, Nottingham is lawfully held in custody. As nothing short of a decision of that question will finally and satisfactorily dispose of this case, we will pass without discussion the question whether or not the district court has the power to discharge from custody a person convicted of a misdemeanor in a court having co-ordinate jurisdiction in misdemeanor cases, and will proceed to determine the case on its merits. Assuming, as Nottingham contends, that the district court has such power, the facts disclosed by the record do not entitle him to a discharge from custody.

1. The attempted stay of execution during good behavior is void. Counsel for the people and counsel for the defendant claim that such is the law; and, although there is a conflict among the authorities, the rule above stated is supported, we believe, by the better reason and by the weight of authority. See 8 R.C.L. p. 253, and 16 C.J. p. 1333, citing many cases.

The words 'attempting to suspend sentence,' as was said in Neal v. State, 104 Ga. 509, 30 S.E. 858, 42 L.R.A. 190, 69 Am.St.Rep. 175, 'are of no legal force, and consequently should be ignored, and the sentence executed just as if they did not appear' in the sentence. This is not a case of indefinite postponement of the time to pass sentence. Nottingham was sentenced; it was only the execution of the sentence that was postponed. Grundel v. People, 33 Colo. 191, 79 P. 1022, 108 Am.St.Rep. 75, therefore, has no application to this case.

2. The invalidity of the attempt to suspend execution of the sentence does not affect the validity of the sentence of imprisonment; that sentence may be enforced even after the expiration of the court term, and even after the expiration of six months from the date of sentence, which was the time of imprisonment specified in the sentence. In 16 C.J. p. 1335, the rule is stated thus:

'According to the weight of authority, however, where the court makes an unauthorized order suspending the execution of the sentence it does not prevent the subsequent enforcement thereof, because the validity of the judgment is not affected by such an order, even though it is made a part of the judgment imposing the sentence, and may be enforced at any time after its rendition so long as it remains unexecuted, either before or after the term of court when it was imposed. While a defendant sentenced to a term of imprisonment is entitled to immediate incarceration, yet, if he does not object to the suspension of execution by the court, the judgment during such suspension remains unexecuted, and can be satisfied only by the actual suffering of the imprisonment imposed, unless remitted by death or by some legal authority. Thus the expiration of the time without imprisonment is in no sense an execution of the sentence; and while defendant is at large under a void order suspending execution of sentence, to which suspension he does not object, he is in the same situation as one who escapes, and may be ordered into custody upon the unexecuted judgment.'

And see Morgan v. Adams, 226 F. 719, 141 C.C.A. 475; State v. Abbott, 87 S.C. 466, 70 S.E. 6, 33 L.R.A. (N. S.) 112, Ann.Cas. 1912B, 1189; Spencer v. State, 125 Tenn. 64, 140 S.W. 597, 38 L.R.A. (N. S.) 680; In re Lujan, 18 N.M. 310, 137 P. 587; Neal v. State, 104 Ga. 509, 30 S.E. 585, 42 L.R.A. 190, 69 Am.St.Rep. 175.

In Fuller v. State, 100 Miss. 811, 57 So. 806, 39 L.R.A. (N. S.) 242, Ann.Cas. 1614A, 98, the court said:

'It is immaterial that a longer period of time than that for which appellant was sentenced has elapsed since the sentence was imposed. While at large under this void order, to which he did not object, appellant was in the same situation that he would have been, had he simply escaped from custody. In such case the sentence is not satisfied until it has been actually served.'

In the present case, it may be said of Nottingham, as was said of the defendant in Fuller v. State, supra:

'The postponement of his imprisonment was

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