Mackelprang v. Walker

• Decision Date: 20 April 1929
• Docket Number: 4713
• Court: Utah Supreme Court
• Parties: MACKELPRANG v. WALKER

277 P. 401

74 Utah 121

MACKELPRANG v. WALKER

No. 4713

Supreme Court of Utah

April 20, 1929

Appeal from District Court, Fifth District, Iron County; N. J Bates, Judge.

Application by Delroy Mackelprang for a writ of habeas corpus to obtain his release from the custody of W. G. Walker, Marshal of Cedar--City, Iron County, Utah. From a judgment denying applicant's discharge, he appeals.

Applicant discharged.

George B. Hancock, of Huntington Park, Cal., for appellant.

Reuben J. Shay, of Cedar City, for respondent.

ELIAS HANSEN, J. EPHRAIM HANSON, J., STRAUP, J., concurring. CHERRY, J., FOLLAND, J., dissenting.

OPINION

ELIAS HANSEN, J.

Delroy Mackelprang applied to the district court of Iron county Utah, for a writ of habeas corpus to obtain his release from the custody of W. G. Walker, the marshal of Cedar City, Iron county, Utah. The application was dismissed. This appeal is prosecuted from the judgment denying applicant's discharge.

Mackelprang claims the right to be discharged from the custody of the marshal upon this state of facts:

On September 27, 1927, a verified complaint was filed in the justice court of Cedar City, Iron county, Utah, charging Delroy Mackelprang with the unlawful possession of one pint of moonshine whisky. Upon being arraigned, Mackelprang entered a plea of guilty. He waived time for passing sentence, whereupon the justice of the peace pronounced sentence to the effect that Mackelprang pay a fine of $ 75 or serve 75 days in the city jail.

The justice of the peace testified that: "He (Mackelprang) paid $ 25 and gave a bond for the other $ 50, to be paid in 30 days." The bond referred to by the justice of the peace provides that the sureties "do hereby undertake and promise that the above-named Delroy Mackelprang, defendant, will appear and pay above sum of $ 75, or, if he fail to perform the conditions, we will pay to Cedar City in lawful money of the United States the sum of $ 75." The bond was executed by two sureties and delivered to the justice of the peace.

Neither Mackelprang nor his sureties paid the remaining $ 50 of the fine. The justice of the peace did not enter the sentence in his docket or elsewhere. He did, however, make the following notation on a copy of the complaint: "Plead guilty. Fined $ 75.00 or 75 days in jail. Pd. $ 25.00." No further proceedings appear to have been had in the case of Cedar City v. Delroy Mackelprang until about March 8, 1928. In the meantime Mackelprang continued to reside with his family at Cedar City, Utah. Between September 27, 1927, and March 8, 1928, he was absent from Cedar City about a week.

It is made to appear that on March 8, 1928, the marshal of Cedar City held Mackelprang in custody upon a commitment issued by the justice of the peace of Cedar City, Utah, in the case of Cedar City v. Delroy Mackelprang. It also appears that on that date, March 8, 1928, the district court of Iron county ordered Mackelprang released. The first order directing the discharge of Mackelprang appears to have been based upon the fact that no written judgment or sentence was entered in the docket of the justice of the peace of Cedar City until after the marshal was ordered to release Mackelprang. As soon as the marshal was directed to release Mackelprang, the justice of the peace of Cedar City made the following written entry in his docket in the case of Cedar City v. Delroy Mackelprang:

"Sept. 27, 1927. Defendant brought into court. Complaint read to defendant and having been duly advised of all legal rights he entered a plea of guilty. The defendant duly waived time for passing the sentence and consented that sentence be passed upon him at that time. Whereupon the defendant was sentenced to pay a fine of $ 75.00 or serve 75 days in the city jail. $ 25.00 of said fine was paid. The court granted a stay of execution for ten days upon the defendant furnishing a bond signed by two good and sufficient sureties. Alex H. Rollo, Justice of the Peace."

As soon as the entry was so made in the docket, the justice of the peace issued a commitment in words and figures following (omitting title of court and cause):

"The State of Utah to the Marshal of Cedar City, Iron County, Utah--Greetings:

"Whereas, on the 27th day of September, A. D. 1927, one Delroy Mackelprang was brought before me, Alex H. Rollo, a justice of the peace in and for Cedar City, Iron county, and state of Utah, charged with having in his possession unlawfully one pint of moonshine whisky within the limits of said Cedar City on the 27th day of September, A. D. 1927, contrary to the revised ordinances of Cedar City; and

"Whereas, the said defendant was adjudged guilty of said offense and sentenced to pay $ 75 or be imprisoned in the city jail for a term of 75 days; and

"Whereas, only $ 25 of said fine has been paid:

"Now, therefore, you are hereby forthwith commanded to take into your custody the said Delroy Mackelprang and safely keep him until he shall pay the said sum of $ 50 or secure the same to be paid as provided by law, not exceeding one day in the city jail for each dollar of fine.

"In witness whereof I have hereunto set my hand this 8th day of March, A. D. 1928.

"Alex H. Rollo,

"Justice of the Peace."

In this proceeding it is by virtue of the foregoing commitment that the marshal of Cedar City seeks to justify his custody of Mackelprang.

There is a conflict in the adjudicated cases as to the effect of a failure to timely enforce a sentence of imprisonment against one who has been convicted of a crime. If the delay in enforcing a sentence of imprisonment is caused by the pending of a motion in arrest of judgment, a motion for a new trial, in pursuance of a suspended sentence as provided for by Laws Utah 1923, p. 144, c. 74, upon appeal or for other cause necessary to give a defendant ample time and opportunity to avail himself of every safeguard guaranteed him by law, there can be no serious doubt but that a delay in the enforcement of the sentence for any such purpose does not deprive the court of jurisdiction to enforce its judgment. In some jurisdictions it is in effect held that, in the absence of death or the pardon of a defendant, a sentence of imprisonment is satisfied only by the actual suffering of the imprisonment. The following cases support, or tend to support, such view: State v. Drew, 75 N.H. 402, 74 A. 875; Morgan v. Adams, 226 F. 719, 720, 141 C. C. A. 475; State v. Abbott, 87 S.C. 466, 70 S.E. 6, 8, 33 L. R. A. (N. S.) 112, Ann. Cas. 1912B, 1189; Norman v. Rehberg, 12 Ga.App. 698, 78 S.E. 256; Ex parte Lujan, 18 N.M. 310, 137 P. 587; Fuller v. State, 100 Miss. 811, 57 So. 806, 39 L. R. A. (N. S.) 242, Ann. Cas. 1914A, 98; In re Collins, 8 Cal.App. 367, 97 P. 188; Friske v. Circuit Court, 51 S.D. 415, 214 N.W. 812; Egbert v. Tauer, 191 Ind. 547, 132 N.E. 370, 134 N.E. 199; Tanner v. Wiggins, 54 Fla. 203, 45 So. 459, 14 Ann. Cas. 718; Daniel v. Persons, 137 Ga. 826, 74 S.E. 260; Miller v. Evans, 115 Iowa 101, 88 N.W. 198, 88 N.W. 196, 56 L. R. A. 101, 91 Am. St. Rep. 143; Brabandt v. Commonwealth , 157 Ky. 130, 162 S.W. 786; Re Hinson, 156 N.C. 250, 72 S.E. 310, 36 L. R. A. (N. S.) 352; Spencer v. State, 125 Tenn. 64, 140 S.W. 597, 38 L. R. A. (N. S.) 680.

In other jurisdictions it is held that, if the defendant is permitted to go indefinitely on his own recognizance after sentence is imposed, or if enforcement of the sentence is unreasonably delayed, the court loses jurisdiction to enforce the imprisonment. Ex parte Clendenning, 22 Okla. 108, 97 P. 650, 19 L. R. A. (N. S.) 1041, 132 Am. St. Rep. 628; People v. Barrett, 202 Ill. 287, 67 N.E. 23, 63 L. R. A. 82, 95 Am. St. Rep. 230; Weaver v. People, 33 Mich. 296; United States v. Wilson (C. C.) 46 F. 748; Ex parte Peterson, 19 Idaho 433, 113 P. 729, 33 L. R. A. (N. S.) 1067; In re Markuson, 5 N.D. 180, 64 N.W. 939; In re Strickler, 51 Kan. 700, 33 P. 620; Posvar v. McPherson, 36 Wyo. 159, 253 P. 667; In re Flint, 25 Utah 338, 71 P. 531, 95 Am. St. Rep. 853; Scottsboro v. Johnson, 121 Ala. 397, 25 So. 809; Grundel v. State, 33 Colo. 191, 79 P. 1022, 108 Am. St. Rep. 75; Tuttle v. Lang, 100 Me. 123, 60 A. 892; State v. Clifford, 84 N.J.L. 595, 87 A. 97; Scott v. Chichester, 107 Va. 933, 60 S.E. 95, 16 L. R. A. (N. S.) 304; In re Webb, 89 Wis. 354, 62 N.W. 177, 27 L. R. A. 356, 46 Am. St. Rep. 846. Other cases dealing with the effect of a delay in the enforcement of sentence of imprisonment are referred to in some of the foregoing citations, but the cases above cited will serve to illustrate the divergent views of judicial opinion.

The case of Reese v. Olsen, 44 Utah 318, 139 P. 941, was cited in the court below in support of the contention that Mackelprang was lawfully held in custody by the marshal of Cedar City. So far as appears from the opinion in that case, the question of a delay in enforcing the imprisonment imposed upon Reese was not involved. Reese was sentenced on March 10, 1914. The opinion was rendered April 4, 1914, at which time Reese had served about 20 days. Reese, therefore, must have been committed within a few days after sentence was passed.

The law announced in the Flint Case, supra, is applicable to the facts in this proceeding. In that case Richard Flint was convicted of the crime of forgery on February 25, 1902. Time for sentence was set for March 5, 1902, and then continued to March 12, 1902. Flint appeared for sentence on the last-mentioned date, at which time the court ordered that sentence be suspended and defendant permitted to go on his own recognizance. On December 5, 1902, the judge before whom the defendant was tried and convicted made and entered an order directing that Flint appear before the court for sentence on Monday, January 5, 1903. On that day time...