Philpots v. State

• Decision Date: 14 March 1890
• Citation: 65 N.H. 250,20 A. 955
• Parties: PHILPOTS v. STATE.
• Court: New Hampshire Supreme Court

20 A. 955

65 N.H. 250

PHILPOTS

v. STATE.

Supreme Court of New Hampshire. Strafford.

March 14, 1890.

Dodge & Caverly and W. L. Pierce, for plaintiff. J. Kivel, Solicitor, for the State.

BINGHAM, J. Petition for a writ of habeas corpus, presented to a justice, and adjourned to the law term. The facts appear from copies of records. May 21, 1888, in the police court of Dover, the plaintiff pleaded nolo contendere to a complaint charging the offense of being a common seller of spirituous liquors. In pursuance of an agreement made by him and the county solicitor, the court "ordered that sentence be suspended on payment of costs, $8.64, on condition that the respondent goes out of the business of the illegal sale of liquor, and that the said respondent does not hereafter engage in said illegal business;" and the respondent paid the costs, and was released from custody. At the September term of the supreme court, 1889, he was indicted for keeping spirituous liquor for sale; on the 22d day of May, 1889, pleaded nolo contendere, and paid fine and costs. A complaint was afterwards presented to the police court alleging his non-performance of the condition on which sentence had been suspended. A warrant was issued, on which he was arrested, and brought before the police court, December 7, 1889. The case in which sentence was suspended was brought forward, and there was a hearing on the question of his performance of the condition. The record of the result is: "December 16, 1889. It appearing that said defendant has not gone out of the business of the illegal sale of liquor, but did after the said 21st of May, 1888, engage in said illegal business, in violation of the above order, it is therefore ordered that he pay a fine of $100, and be confined in the county jail for the term of six months, and stand committed till this order is complied with." He claimed an appeal, to which the court held he was not entitled, and, being committed to jail, he brought this petition.

The legal construction of the order of suspension is that, if the question whether the condition has been performed is triable by any judicial tribunal, the trial and decision are to be by the court that made the order. Its decision is not reversible in this court on any process equivalent to an appeal, and the proceedings were not invalidated by the suspension or the condition. Sylvester v. State, 65 N. H.——, ante, 954. The jurisdiction of the police court was no more affected by the release of the respondent from custody than it would have been by his escape. The fine and imprisonment imposed by that court are not a punishment for non-performance of a condition, but the penalty prescribed by Gen. Laws, c. 109, § 14, for the offense of being a common seller. His guilt was not an open question. It was conclusively established by his plea. State v. Fagan, 64 N. H. 431, 14 Atl. Rep. 727. The only question was whether he should be punished for the offense of which he confessed himself guilty. The conditional suspension was not a hardship, nor a contract enforceable by suit for damages, or for a penalty, but a mere favor. It was not an injunction or prohibition. It gave him an election between an abandonment of his illegal business and a continuance or resumption of it, with a liability to judgment on his recorded plea. The question of performance of the condition could not be carried on appeal from the court in which the final judgment on his plea was to be rendered and enforced. Gen. Laws, c. 258, § 2, gives an appeal to "any person sentenced for any offense by a police court or justice of the peace," to enable him to obtain another trial of the question of guilt on which judgment is rendered against him, and not of an incidental or collateral question like that raised by a motion for a continuance, or motion for suspension of sentence, or by the second complaint in this case.

As to the rendition of final judgment on the plea of nolo contendere in the police court, the case is governed by another statute. Before 1860, police courts had no jurisdiction of complaints for selling, keeping for sale, and being a common seller of, intoxicating liquor, except to discharge the accused, or order him to recognize to appear at another court. Laws 1855, c. 1658, § 5. A recognizance to appear at another court, and there answer to an indictment, being considered by the legislature an unnecessary hardship, when he desired to plead guilty or nolo contendere, and suffer the penalty, the act of 1860, c. 2366, § 1, provides that police courts and justices of the peace shall have the power of final judgment and sentence in all proceedings "for violation of the liquor law in which the accused shall plead guilty or nolo contendere." This provision, extended to other cases by Laws 1881, c. 5, is a relief of the accused in cases in which he wishes to avoid the trouble of recognizing and going to another court by submitting to judgment and sentence on a confession of guilt. The petitioner contends that this statute is consistent with a right of appeal, as...