State v. Buckley

• Decision Date: 07 December 1909
• Citation: 75 N.H. 402,74 A. 875
• Parties: STATE v. BUCKLEY. SAME v. PICKFORD.
• Court: New Hampshire Supreme Court

74 A. 875

75 N.H. 402

STATE

v. BUCKLEY.

SAME

v. PICKFORD.

Supreme Court of New Hampshire. Coos.

Dec. 7, 1909.

Exceptions from Superior Court, Coos County; Plummer, Judge.

Habeas Corpus. On petition of Alfred E. Buckley and Patrick I. Pickford. In the superior court relators' petitions were dismissed, and they bring exceptions. Overruled.

At the April term, 1908, of the superior court, both defendants were indicted for violating section 15, c. 112, Pub. St. 1901. The county solicitor agreed that if they would plead guilty that part of the sentences which required their imprisonment might be suspended. The court so far ratified the agreement as to attach to each sentence the memorandum, "Mittimus to issue at call of said solicitor." The solicitor called for the mittimuses in April, 1909, and when the defendants were arrested they filed these petitions.

Bernard Jacobs, for the State. Sullivan & Daley and Drew, Jordan, Shurtleff & Morris, for defendants.

YOUNG, J. The defendants contend that, notwithstanding the court may have common-law jurisdiction to suspend sentences in some cases (4 Bl. Com. 394), it cannot legally suspend either the imposition or the execution of a sentence for an indefinite time. Although that may be the law in some states, it is not the view which obtains here; for this court holds that it may at the request of the defendant suspend either the imposition (Philpot v. State, 65 N. H. 250, 20 Atl. 955) or the execution of a sentence (Sylvester v. State, 65 N. H. 193, 20 Atl. 954), for either a definite (Ex parte Howard, 17 N. H. 545) or an indefinite time (Sylvester v. State, supra; Philpot v. State, supra). The court, therefore, had power to make the part of the order complained of; but if that were not the fact it would not authorize the discharge of the defendants.

Concede that the court had no authority to suspend the defendants' sentences, and the fact still remains that it had power to impose them; and, as the two parts of the order are separate and distinct, the illegality of the last part would in no way affect the validity of the first part. Sylvester v. State, supra. That is, if the part of the court's order complained of were illegal, the part of which no complaint is made would still be valid, and it would be the duty of the court to enforce it; for, as was said in a recent case (Petition of Moebus, 73 N. H. 350, 352, 62 Atl. 170, 171), "the sentence of the law is to be satisfied only by the actual suffering of the...