Reese v. Olsen

• Citation: 139 P. 941,44 Utah 318
• Decision Date: 04 April 1914
• Docket Number: 2635
• Court: Utah Supreme Court
• Parties: REESE v. OLSEN, SHERIFF

139 P. 941

44 Utah 318

REESE v. OLSEN, SHERIFF

No. 2635

Supreme Court of Utah

April 4, 1914

Petition for habeas corpus by Robert Reese against Joseph R Olsen as Sheriff of Box Elder County, Utah.

WRIT DENIED.

W. H Harcombe and J. N. Kimball for plaintiff.

R. S Thatcher and W. J. Lowe for defendant.

STRAUP J. McCARTY, C. J., FRICK, J., concurring.

OPINION

STRAUP, J.

The petitioner, on a writ of habeas corpus, seeks to be discharged from imprisonment in the county jail of Box Elder County. It is alleged that he is there, by the sheriff of that county, unlawfully imprisoned. The sheriff holds him on a commitment based on a judgment rendered by the district court on March 10, 1914. The judgment is:

"It is the judgment of this court and the sentence of the law that you, Robert Reese, having been convicted of the crime of a misdemeanor, to wit, selling intoxicating liquors, be punished therefor by imprisonment in the county jail at Brigham City, Box Elder County, for a term of thirty days, and that you pay a fine of $ 299, or, in lieu of said fine, be imprisoned in the said county jail one day for each dollar of said fine, however, not to exceed the term of six months; and you are remanded into the custody of the sheriff of this county for the execution of this sentence, provided, further, that the thirty days' imprisonment in the county jail above referred to is suspended during good behavior; that is, so long as the promise made by the defendant is lived up to."

The penalty provided for a conviction of such a misdemeanor is a "fine of not less than $ 50 nor more than $ 299, or by imprisonment in the county jail for not less than thirty days, or more than six months, or by both such fine and imprisonment." (Laws 1911, chap. 106, section 65.) A further statute (Comp. Laws 1907, section 4919) provides: "A judgment that the defendant pay a fine may also direct that he be imprisoned until the fine is satisfied specifying the extent of the imprisonment, which cannot exceed one day for every one dollar of the fine." Section 4925: "If the judgment is for a fine and costs, or either alone, execution may be issued thereon as on a judgment in a civil action." Section 4926: "If the judgment is for imprisonment, or a fine and imprisonment until such fine is paid, the defendant must forthwith be committed to the custody of the proper officer, and by him detained until the judgment is complied with."

This court, in Roberts v. Howells, 22 Utah 389, 62 P. 892, held that section 4919 "was not intended to apply to judgments where both fine and imprisonment were imposed, but that it does apply where there is no express judgment of imprisonment. In other words, if there is a judgment of imprisonment and a judgment of fine, then the fine is not enforceable by imprisonment," and, "where a judgment of imprisonment has been rendered and also a judgment of fine, there can be no imprisonment to satisfy the fine."

A number of decisions under similar statutes from the Supreme Court of California are cited in support of this.

The petitioner therefore asserts that, since the court here rendered a judgment of imprisonment for thirty days and a fine of $ 299, the court was not authorized to direct additional and further imprisonment to satisfy the fine, if not paid, and hence that portion of the judgment directing imprisonment until the fine is satisfied is void. He also asserts there can be no imprisonment under the portion of the judgment directing imprisonment for thirty days, for the reason that the execution of that part of the judgment was suspended or stayed, which, he asserts, the court had power to make, at least when not objected to by the petitioner or when assented to by him. Thus, upon these propositions, the petitioner urges that his imprisonment is neither justified nor authorized. He further claims that, if the court had not power to stay execution of the judgment of thirty days' imprisonment, then the void portion of the judgment directing imprisonment until the fine is paid renders the whole of the judgment void. And, lastly, if these be not true, then he asserts the whole judgment is bad because of a fatal patent ambiguity. This because the judgment directs, not the payment of a fine and imprisonment "until the fine is satisfied," but the payment of a fine "or, in lieu of said fine, be imprisoned," etc., thus directing the payment of the fine or imprisonment in the alternative, which, it is argued, is not what the statute in such particular prescribes, and thus such portion of the judgment is rendered uncertain. And, if the court was without power to suspend or stay execution of the portion of the judgment directing imprisonment for thirty days, then is it also claimed that such portion of the judgment is...