Martin v. People, 9015.

• Docket Nº: 9015.
• Citation: 69 Colo. 60, 168 P. 1171
• Case Date: October 08, 1917
• Court: Supreme Court of Colorado

168 P. 1171

69 Colo. 60

MARTIN
v.
PEOPLE.

No. 9015.

Supreme Court of Colorado, En Banc.

October 8, 1917

Rehearing Denied Dec. 4, 1917.

Error to Juvenile Court, City and County of Denver; Ben B. Lindsey, Judge.

Leo W. Martin was convicted of an offense, and he brings error. Affirmed.

E. N. Burdick and John De Weese, both of Denver (Edgar Caypless, of Denver, of counsel), for plaintiff in error.

Leslie E. Hubbard, Atty. Gen., and Bertram B. Beshoar, Asst. Atty. Gen. (Clement F. Crowley, of Denver, of counsel), for the People.

HILL, J.

[69 Colo. 61] The plaintiff in error was convicted for the violation of our so-called nonsupport act (chapter 179, Laws 1911) for his willful failure to support his infant child. The errors assigned challenge the validity of this act, as well as the jurisdiction of the juvenile court. It is urged that the act is in conflict with both state and federal Constitutions; that it is meaningless, ambiguous, uncertain, and unintelligible; that it makes any distinction between a prosecution for a felony or misdemeanor dependent upon the whim or caprice of the trial judge, etc. A large portion of counsel's brief is directed to the wisdom of this act, its reasonableness, etc. As these are matters with which we, as a court, have no concern, we shall make no comments concerning them.

Attention is called to section 12, art. 2, of our Constitution, which prohibits imprisonment for debt. The theory of counsel is that, as the act allows suspension of sentence upon giving bond to support the child and later the sentence should be enforced because the conditions of the bond had been violated, the plaintiff in error would then be sent to the penitentiary because he had not paid a debt fixed by the judgment of the court. This position is untenable. The sentence was for the crime for which the plaintiff in error was convicted. The statute provides a method whereby he can avoid its execution, but if he fails to do this, it still remains a sentence for the crime and not an imprisonment for debt. Similar provisions have been upheld in other jurisdictions. People [168 P. 1172] v. Heise, 257 Ill. 443, 100 N.E. 1000; State v. English, 101 S.C. 304, 85 S.E. 721, L.R.A. 1915F, 977; State v. Brewer, 38 S.C. 263, 16 S.E. 1001, 19 L.R.A. 362, 37 Am.St.Rep. 752; In re Wheeler, Petitioner, 34 Kan. 96, 8 P. 276; Musser v. Stewart, 21 Ohio St. 353; Ex parte Cottrell, 13 Neb. 193, 13 N.W. 174.

It is urged that the power granted to the court to suspend sentence upon the giving of a bond is in conflict with the constitutional requirements for sentence in felony cases, also that it is an infringement upon the pardoning power of [69 Colo. 62] the Governor, and that for these reasons the act is void. We cannot agree with either of these contentions.

In Grundel v. People, 33 Colo. 191, 79 P. 1022, 108 Am.St.Rep. 75, this court said:

'In the absence of a permissive statute, the indefinite postponement of sentence upon one convicted of crime deprives the court of jurisdiction to pronounce sentence at a subsequent term. Such postponement is, in effect, a discharge of the prisoner, and therefore ousts the court after the expiration of the term of fur ther authority over him. * * *'

This declaration involved a charge of gambling, where, in August, 1900, the district court records recite that defendants appeared, and upon their motion and request further proceedings were stayed upon payment of costs until the district attorney moved for sentence and their recognizance continued. No further steps were taken in the case until November, 1903, at which time the district attorney moved for sentence, which, it was held, the court was, at that time, powerless to impose, but this was over three years after the time of postponement. In Young v. People, 53 Colo. 251, 125 P. 117, the defendant entered a plea of nolo contendere. The court, on this plea, ordered that the cause be retired from the docket upon the payment of costs with leave to the people to have an alias capias for the defendant's arrest at any time and to reinstate the case for further proceedings. The defendant was thereafter arrested and brought before the court when sentence was imposed. This was about three months after the original suspension. It was...