Kruzas v. O'Dowd
| Decision Date | 06 December 1927 |
| Parties | KRUZAS v. O'DOWD. |
| Court | New Hampshire Supreme Court |
Exceptions from Superior Court, Hillsborough County; Burque, Judge.
Petition by Mary Kruzas for habeas corpus against John O'Dowd. The petition was dismissed, and petitioner excepts. Exception overruled.
Petition for habeas corpus, alleging that the petitioner, upon conviction in the municipal court for Nashua on her plea of guilty to a charge of illegal sale of liquor, was sentenced to fine and imprisonment, and the jail sentence was suspended. At a later date she was complained of for a similar offense, and upon trial was found guilty and sentenced. She took an appeal, and upon motion of the prosecuting officer that the former sentence be enforced, it was ordered that the mittimus therefor be issued. She was committed under that mittimus, and now claims that the imprisonment is unlawful.
In the superior court, Burque, J., dismissed the petition, subject to exception.
William A. Joyce and Frederick J. Gaffney, both of Nashua, for plaintiff.
George I. Haselton, County Sol., of Manchester, for defendant.
The allegations in the petition do not set out any infringement of the plaintiff's rights. The contention that when a sentence for violation of the liquor law has been suspended it can thereafter be enforced only upon proof of a subsequent violation of the same law is not well founded. Couture v. Brown, 82 N. H. 460, 135 A. 530. But it is alleged that in this instance there was an understanding that the condition to be complied with was so limited in fact. Assuming that the record could be amplified or modified by proof of such understanding, the case stands no better. The sentence was enforced because of a violation conceded to be within the terms of the order; and to avoid this it is claimed that the finding of such violation is invalid.
The question, whether there has been a violation of the terms upon which a sentence is suspended, is triable (so far as triable at all) in the court which made the order of suspension. The decision of that question is not a matter which is subject to an appeal. Philpot v. State, 65 N. H. 250, 20 A. 955.
If error of law was committed in reaching the conclusion that the mittimus should issue, it might be corrected under the general superintending power of the court. Broderick v. Hunt, 77 N. H. 139, 89 A. 302. Whether it could be revised in this proceeding is not so clear. The common-law rule was that it could not be. If the lower tribunal had jurisdiction, its acts could not be revised upon habeas corpus. State v. Towle, 42 N. H. 540; State v. Shattuck, 45 N. H. 205. The proper proceeding would be an application for a writ of certiorari. Sylvester v. State, 65 N. H. 193, 20 A. 954. But as this defect in the proceedings could be obviated by adding to the petition a prayer for other relief (Philpot v. State, 65 N. H. 250, 252, 20 A. 955), all the...
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...although an appeal from the last conviction was pending. The authorities plainly indicate that it may, and we so hold. Kruzas v. O'Dowd, (83 N.H. 173, 139 A. 580 (1927)); United States v. Carrion supra (457 F.2d 808 (9 Cir. 1972)); United States v. Markovich supra (348 F.2d 238 (2 Cir. 1965......
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Stone v. Shea
...of the court, although an appeal from the last conviction was pending. The authorities plainly indicate that it may, and we so hold. Kruzas v. O'Dowd, supra; Unites States v. Carrion, supra; United States v. Markovich, We turn now to consideration of the issues presented by the petition of ......
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Carpenter v. Berry
...we are treating the matter as though the petition were properly amended by adding an application for a Writ of Certiorari. Kruzas v. O'Dowd, 83 N.H. 173, 139 A. 580. Since calling for the mittimus was an administrative rather than a judicial function (Couture v. Brown, 82 N.H. 459, 135 A. 5......
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Fortier v. Frink, 3293.
...into," he would be remanded. Ex parte Terry, 128 U.S. 289, 301, 9 S.Ct. 77, 78, 32 L.Ed. 405, and cases cited. See, also, Kruzas v. O'Dowd, 83 N.H. 173, 175, 139 A. 580. The plaintiff offered evidence tending to prove that the prosecution in Maryland was not instituted in good faith but for......