Martin v. People

• Decision Date: 08 October 1917
• Docket Number: 9015.
• Citation: 69 Colo. 60,168 P. 1171
• Parties: MARTIN v. PEOPLE.
• Court: Colorado Supreme Court

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.

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 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 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 held, as sentence was imposed within the term, the original order of suspension did not have the effect of an indefinite sentence. These cases were determined where there was no statute authorizing such suspensions, etc., for which reason neither controls this action. While section 4 of article 18 of the Constitution defines the term 'felony' wherever it may occur in the Constitution or laws to mean a criminal offense, punishable by death or imprisonment in the penitentiary and none other, it does not follow, in the absence of language in the Constitution to that effect, that every one convicted of felony must, of necessity, be sentenced to the penitentiary. The Constitution does not thus provide, and such has never been the uniform practice in this state. For instance, take one of our present larceny acts of live stock enacted first in 1877, amended and re-enacted in 1891, it makes the theft of an animal grand larceny, regardless of value. The punishment is imprisonment in the penitentiary or a fine, in the discretion of the court; yet from 1877 up to the present time we have never heard of any transgressor of this act complaining, though its violation is a felony, because he was let off with the more lenient punishment of a fine as it permits. As used in section 4 of article 18 of the Constitution, the phrase 'and none other' means no other offense; that is it relates to the word 'offense,' and not to the character or mode of punishment. People v. Godding, 55 Colo. 579, 136 P. 1011.

The act under consideration provides for imprisonment in the penitentiary for a term not exceeding one year, but the court may, in lieu of this penalty, accept from the person convicted a bond, etc., running to the people, etc., in a sum not exceeding $1,000, as the court shall direct, conditional that the convicted party will comply with the provisions of the act, or perform the conditions required by the court for his compliance with the act in case he is placed on probation. It further provides that, in the interest of justice and for the protection of the wife and children, the court may suspend the sentence upon conditions to be named by the court, which conditions shall require the defendant to perform his duty towards his wife and children, and so long as such conditions are complied with, such sentence may be suspended, but upon failure to comply with such conditions or the conditions named in any bond, etc., he may be arrested sentence passed or enforced, etc. It is these provisions which, it is claimed, interfere with the Governor's pardoning power as provided by the Constitution. We need not concern ourselves with the general rule upon the suspension of sentences, as our statute authorizes a suspension in cases of this kind, and the courts are uniform in their holdings that the...