State v. Barnett

• Decision Date: 07 January 1939
• Docket Number: No. 1653.,1653.
• Citation: 3 A.2d 521
• Parties: STATE v. BARNETT.
• Court: Vermont Supreme Court

3 A.2d 521

STATE

v. BARNETT.

No. 1653.

Supreme Court of Vermont Washington.

Jan. 7, 1939.

[Copyrighted mateiral omitted.]

Exceptions from Barre Municipal Court; William H. Scott, Judge.

Dean Barnett was charged with leaving the scene of an automobile accident and sentenced to imprisonment in the House of Correction on his plea of nolo contendere, and after a judgment imposing a like sentence on adjudication of his violation of the conditions of probation granted him, he brings exceptions.

Judgment reversed, sentence set aside, and respondent discharged.

Argued before MOULTON, C. J., and SHERBURNE, BUTTLES, STURTEVANT, and JEFFORDS, JJ.

Webster E. Miller, State's Atty., of Montpelier, for the State.

C. O. Granai, of Barre, for respondent.

JEFFORDS, Justice.

It appears from the findings of fact made and filed that the respondent was originally brought before the Barre municipal court charged with a violation of the statute relating to leaving the scene of an accident, now P.L. § 5156, which reads as follows: "The operator of a motor vehicle who has caused or is involved in an accident resulting in injury to any person or property, other than the vehicle then under his control or its occupants, shall immediately stop and render such assistance as may be reasonably necessary," etc.

The accident happened September 20th, 1929. On September 23rd, 1929, the respondent entered a plea of not guilty and the case was continued to October 18th when the plea was withdrawn and a plea of nolo contendere was entered. On this plea the sentence of the court was that the respondent pay a fine of $100 and costs of $18.40 and that he be imprisoned in the house of correction for a term of not less than 18 months nor more than 2 years.

The fine and costs were paid and the respondent was placed on probation under the usual conditions, with the additional condition that the respondent should make restitution of $10 per week for the benefit of E. J. Dunn. Such payments to be made as follows: $10 on the 21st of October, 1929, and $10 on each week thereafter until further order of the court.

The condition as to probation was originally brought about by agreement of the respondent in conformity with a written communication presented to the court and filed there in words and figures as follows:

"St. Johnsbury, Vt.

"October 13, 1929.

"Hon. H. Wm. Scott.

"Dear Judge:

"If it meets with your approval I would like to have Dean Barnett put on probation, on condition that said Dean Barnett pay me, or into court for my benefit the sum of ($1500) Fifteen Hundred payable at least $10.00 per week until the amount is fully paid. And the same shall be received by me in full settlement of my claim against Dean Barnett for all injuries received by me Sept. 20th, 1929.

"Very truly yours,

"E. J. Dunn

"Witness:

"David S. Conant."

Thereafterwards the respondent paid into court from time to time $10 per week, as ordered, until the sum of $1,060 had been paid.

On September 12th, 1931 the state probation officer filed in court a petition for the discharge of the respondent from probation. This petition was considered by the court on that same day and denied.

On September 10th, 1937, the executive director of probation and parole wrote to the court asking for information. This letter was replied to by two letters from the court.

On November 15th, 1937, the state probation officer filed in court a petition for a warrant and the same was issued and respondent brought before the court. Upon hearing it was considered and adjudged that the former order of $10 per week be amended to be $10 per month until the further sum of $440 be paid, the first payment to be on December 1st, 1937. The department of probation and parole was advised as to the amendment of the order.

On January 22nd, 1938 the court reported to the probation department that the last order had not been complied with and asked that the matter be fully and further investigated and report made.

On March 3rd, 1938 a new complaint by the state probation officer was filed and warrant issued and the respondent was brought before the court. The case was continued from time to time and the orders extended and on March 14th, 1938, $20 was paid into court on the order under protest.

The order still not being complied with, on May 4th, 1938, the state probation officer signed an additional complaint alleging in addition to the usual form that on the 3rd day of March, 1938 before the Caledonia municipal court the said respondent pleaded guilty to intoxication and paid a fine and costs. The respondent was again brought before the court on May 4th, 1938, when the case was partially heard and thereafter continued from time to time to June 17th, at which time it was further considered and adjudged by the court that the respondent had violated the conditions of his probation in that he had not complied with the order of the court to pay $10 per month restitution for the benefit of E. J. Dunn as ordered by the court on Nov. 15th, 1937, under paragraph 7 of the conditions of probation.

It was further considered and adjudged by the court that the respondent had further violated the terms of his probation in that he had not abstained from the use of intoxicating liquor, and that he had become intoxicated and arrested therefor and did enter a plea before the Caledonia municipal court on March 3rd, 1938 on which plea he was duly adjudged guilty and fined.

The court further found that at no time from Oct. 14th, 1929, to June 17th, 1938, had the Barre municipal court released and discharged the said respondent from the conditions of the probation imposed and agreed to by him on the said 14th day of October, 1929.

The court rendered judgment against the respondent and ordered that he serve not less than 18 months nor more than 2 years in the house of correction at Windsor.

The respondent excepted to the various findings of the court. Although stated in several ways, these exceptions in substance amount to this: That the court was without power to impose the condition of payment to Dunn in that there is no law upon which to base it and the same is contrary to the spirit and letter of the law and against public policy. That the imposing of this condition was duress and an abuse of discretion on the part of the court. That by making such order the court in a criminal case made itself a collection agency for a private debt. That the continuing of the probation period for so long a time and the various hearings and the amendment to the order show positively that the probation period was extended for the purpose of collecting money. That the continuing of the probation period in this case for so long a time is against public policy.

The final exception of the respondent was to the effect that the court was without jurisdiction to impose the conditions of probation in that the conditions were not within the law and that the period of probation was unduly prolonged in the collection of a private debt existing between the respondent and a third party.

The record does not show that any exception was taken to the judgment but that does not preclude us from considering exceptions properly raised to the findings upon which the validity of the judgment depends when, as here, such exceptions are brought before us by the bill of exceptions. Fuller & Co. v. Morrison et al., 106 Vt. 22, 169 A. 9; Conn Boston Co. v. Griswold, 104 Vt. 89, 94, 157 A. 57; Brown v. Vermont Mutual Fire Ins. Co., 92 Vt. 272, 274, 102 A. 1042; Estabrooks v. Fidelity Mut. Ins. Co., 74 Vt. 202, 52 A. 420; 4 C.J.S., Appeal and Error, p. 735, § 337.

This must be especially so when a jurisdictional question is raised, for such a question may be raised at any stage of a case and is never out of time. Fuller & Co. v. Morrison et al., supra; Miner's Executrix v. Shanasy et al., 92 Vt. 110, 102 A. 480; Kelley v. Moretown, 71 Vt. 340, 45 A. 224.

The court in making the condition of payment to Dunn apparently acted under what is now P.L. sec. 8872 which provides that the court after passing sentence may then suspend all or part of such sentence and place the person so convicted and sentenced in the care and custody of the state probation officer under such conditions and for such time as it may prescribe, or until further order of court.

By P.L. sec. 8873 it is provided that the court placing a person on probation, at its discretion, at any time during the term of probation, may enlarge, alter or amend its conditions or extend the term thereof or discharge such person from the care and custody of the state probation officer. This same provision was in effect at the time the respondent was placed on probation and thereafter.

Very few cases can be found bearing on the question of the validity of certain conditions of probation and the effect on the sentence if a condition be determined to be illegal.

Placing one on probation is akin to the issuance of a conditional pardon. But there is a distinction between the two not here material as is pointed out in State v. Hardin, 183 N.C. 815, 112 S.E. 593.

It is generally held that a conditional pardon can be granted upon any terms or conditions provided the same are not illegal, immoral, nor impossible of performance. Ex parte Davenport, 110 Tex.Cr.R. 326, 7 S.W.2d 589, 60 A.L.R. 1403. And see cases collected in annotation 60 A.L.R. 1410 et seq.

We have applied the same test with the additional restriction that the condition be not unreasonable. In re Conditional Discharge of Convicts, 73 Vt. 414, 419, 420, 51 A. 10, 56 L.R.A. 658; In re Gordon, 105 Vt. 277, 279, 165 A. 905.

Among the conditions held legal in the cases cited in the annotation, supra, are that the respondent leave the state or country, maintain good behavior, pay the cost of trial and that he make full restitution to the government.

The case having to do with this last condition is that of Bradford v. U. S., 228 U. S. 446, 33...