Miller v. Evans

• Decision Date: 18 December 1901
• Citation: 115 Iowa 101,88 N.W. 198
• Parties: MILLER v. EVANS, SHERIFF.
• Court: Iowa Supreme Court

115 Iowa 101

88 N.W. 198

MILLER

v.EVANS, SHERIFF.

Supreme Court of Iowa.

Dec. 18, 1901.

Appeal from district court, Linn county; Wm. G. Thompson, Judge.

The petitioner on the 22d day of November, 1899, was sentenced “to pay a fine of $300 and costs of prosecution, and stand committed to the jail of Linn county, Iowa, for a period of ninety days, unless said fine is sooner paid.” Mittimus was not issued until January 2, 1900, and not served by the sheriff taking him into custody until February 22, 1900. He was brought before the court on writ of habeas corpus February 28, 1900, and, upon hearing, was remanded to the custody of the sheriff, and his petition dismissed. The petitioner appeals. Affirmed.Heins & Heins, for appellant.

LADD, J.

Though the petitioner was sentenced November 23, 1899, to pay a fine, and, on omission so to do, to stand committed to the county jail for a period of 90 days, mittimus was not issued until January 2, 1900, and the defendant not taken into custody by the sheriff until February 22d following, or after the term of his incarceration would have expired if begun on the day of judgment. He was present in court when sentence was pronounced, and remained in the county during the entire period, interposing no obstacle to carrying out the sentence. There appears to have been no excuse whatever for the delay of the officer. Section 5443 of the Code requires that “when a judgment of imprisonment, either in the penitentiary or county jail, is pronounced, an execution, consisting of a certified copy of the entry thereof in the record book, must be forthwith furnished to the officer whose duty it is to execute the same, who shall proceed and execute it accordingly, and no other warrant or authority is necessary to justify or require its execution.” It was undoubtedly the duty of the clerk to issue mittimus, and of the sheriff to execute the same promptly upon the rendition of judgment; but can it be said that the neglect of these officers shall defeat the very object of the prosecution, i. e. punishment for violation of the criminal laws? The right to suspend sentence after being pronounced is denied the courts of this state. State v. Voss, 80 Iowa, 467, 45 N. W. 898, 8 L. R. A. 767. And this seems now to be the prevailing rule. Neal v. State, 104 Ga. 509, 30 S. E. 858, 42 L. R. A. 190, 69 Am. St. Rep. 175;In re Webb, 89 Wis. 354, 62 N. W. 177, 27 L. R. A. 356, 46 Am. St. Rep. 846;State v. Murphy, 23 Nev. 390, 48 Pac. 628;In re Markuson, 5 N. D. 180, 64 N. W. 939. Contra: Weber v. State, 58 Ohio St. 616, 51 N. E. 116, 41 L. R. A. 472;Fults v. State, 2 Sneed, 232;State v. Crook, 115 N. C. 763, 20 S. E. 514, 29 L. R. A. 260. See, also, People v. Court of Sessions of Monroe Co., 141 N. Y. 288, 36 N. E. 386, 23 L. R. A. 856. Whatever justification the hardships resulting from the peculiar rules of the common law may have furnished for such a practice, all excuse for it disappeared with the enactment of statutes affording full opportunity for the correction of errors, and giving the courts a discretion apparently wide enough to meet the hardest cases. The authority “to grant reprieves, commutations and pardons, after convictions for all offenses, except treason and cases of impeachment,” is by the constitution lodged in the governor; and an order by a court suspending judgment after being entered, save for purposes of appeal, is clearly obnoxious to the objection that it is an attempted exercise of power not judicial, but vested in the executive. Section 16, art. 4, Const. Iowa. But, if petitioner's contention be accepted, the officers of the court may accomplish by delay that which the court itself is powerless to do. Aye, more; for, while the court could not postpone the penalty of the law denounced against the offender, its officers might by procrastination wholly obviate and prevent punishment. In re Webb, 89 Wis. 354, 62 N. W. 177, 27 L. R. A. 356, 46 Am. St. Rep. 846, relied on by appellant, is not precisely like the case at bar in its facts; for there the prisoner was actually in custody, and when, at his request, the sentence was suspended, he was allowed his liberty. The order of suspense was adjudged to be in excess of the court's authority, and the term of imprisonment held to have begun eo instante upon the entry of judgment, and to have terminated at the end of the period fixed therein, although the prisoner had not been incarcerated an instant of that time. A like conclusion was reached in Re Markuson, 5 N. D. 180, 64 N. W. 939. In both cases, however, this conclusion seems to have been treated as a necessary result of declaring the order suspending the sentence illegal. We are unable to discover any reason for allowing the convict to thus profit by a delay to which he has...