State v. Cohen
| Decision Date | 02 December 1921 |
| Docket Number | 2525. |
| Citation | 201 P. 1027,45 Nev. 266 |
| Parties | STATE v. COHEN. |
| Court | Nevada Supreme Court |
Appeal from District Court, Washoe County; Thomas F. Moran, Judge.
Samuel Cohen was convicted of wife and child desertion, and appeals. Appeal dismissed.
H. V Morehouse, of Reno, for appellant.
L. D Summerfield, Dist. Atty., and Harlan L. Heward, Deputy Dist Atty., both of Reno, for the State.
This is a motion to dismiss the appeal which came on to be heard in advance of a hearing on the merits, by stipulation of the parties. Appellant was found guilty by a jury in the Second judicial district court, in and for Washoe county, upon a charge of wife and child desertion; said wife and children being in necessitous circumstances. He was thereafter, on the 27th day of June, 1921, sentenced to be punished by imprisonment in the county jail for a term of not less than 1 month, nor more than 12 months, and remanded to the custody of the sheriff for the execution of sentence. Appellant in due time made a motion for a new trial and moved in arrest of judgment. From the judgment and order denying a motion for a new trial this appeal is taken.
It appears from the certificate of the clerk of the court in which the conviction was had, annexed to the notice of motion to dismiss the appeal, that no application for a certificate of probable cause to stay the execution of judgment was ever made.
After appellant had served one month of his imprisonment, and on the 26th day of July, 1921, he applied to the court in which judgment was rendered for a writ of habeas corpus. It was alleged that the illegality of his confinement consisted in this:
"That no definite period of time was fixed for the punishment and imprisonment of the said Samuel Cohen under said sentence, and that there is no law in this state authorizing or empowering the aforesaid district court to pronounce an indeterminate sentence in a case of misdemeanor against the said Samuel Cohen, and that the said offense for which he was prosecuted was and is a misdemeanor, and that he, the said Samuel Cohen, has now served the said period of 1 month, fixed in the said sentence and judgment of the court, and is entitled to his discharge from custody, for the reason that the remainder of said sentence over and above the said 1 month is illegal and void, and that the said confinement and restraint and deprivation of liberty of the said Samuel Cohen by the sheriff is now illegal, and he, the said Samuel Cohen is entitled to his discharge from custody."
The writ was granted and the petitioner released from custody on said 26th day of July, 1921.
Upon these facts counsel for the state urges that all questions presented on the appeal have become moot questions, and insists that it should be dismissed.
Appellant contends, and the affidavit of his counsel sets forth, that the appellant's guilt or innocence, the jury's disregard of the instructions of the court, as well as the disregard of its own instructions by the court, are questions involved in the motion for a new trial and in arrest of judgment; that these questions are presented by a duly settled bill of exceptions; and that, as the appeal from the order denying the motion for a new trial herein is a distinct and separate appeal from the judgment, the said questions are squarely before the court on appeal, and affect the substantial rights of this appellant, and also the state of Nevada, and are therefore not moot questions. While we are unable to perceive why the fact that these questions are brought before this court on an appeal from the order denying a new trial has any bearing on the motion before us, it is plain that their determination could have no practical result in the case.
Assuming that a decision on the merits would result favorably to appellant, the most that could be determined is that the evidence was insufficient to establish his guilt of the offense charged, or at least that he was illegally convicted by reason of erroneous instructions.
A reversal of the case by this court on any or all of the errors claimed could afford him no relief from the judgment. He has satisfied that by the term of imprisonment served, and has been discharged from custody. Consequently the controversy between the state and appellant involved in this appeal has been terminated as effectually as though a verdict of not guilty had been rendered. There is nothing material to be accomplished--nothing on which the judgment of this court can act effectively and work an advantage to the appellant. People v. Leavitt, 41 Mich. 470, 2 N.W. 812.
While there are cases to the contrary, the weight of authority is to the effect that an appeal or writ of error will be dismissed when there has been a voluntary payment by the defendant of the fine imposed. Brown v. Atlanta, 123 Ga. 497, 51 S.E. 507; State v. Westfall, 37 Iowa, 575; State v. Conkling, 54 Kan. 108, 37 P. 992, 45 Am. St. Rep. 270; Eustler v. Com., 154 Ky. 35; People v. Leavitt, 41 Mich. 470, 2 N.W. 812; Washington v. Cleveland, 49 Or. 12, 88 P. 305, 124 Am. St. Rep. 1013; Commonwealth v. Gipner, 118 Pa. 379, 12 A. 306; Batesburg v. Mitchell, 58 S.C. 564, 37 S.E. 36; Payne v. State, 12 Tex.App. 160; Madsen v. Kenner, 4 Utah, 3, 4 Pac. 992; State v. Pray, 30 Nev. 207, 94 P. 218; 17 C.J. 193.
In the case of Trapp v. State (Okl. Cr. App.) 186 P. 737, an appeal was taken from a judgment of conviction. It was dismissed on motion of the Attorney General. The court stated as one of its reasons for the dismissal:
"That each defendant having been committed to jail under said judgment, they have long since served their respective terms of imprisonment, any legal question involved in this pretended appeal is moot."
There can be no real distinction which might call for the application of a different rule, in a case where a fine has been imposed and one where the term of imprisonment adjudged has been served. This was pointed out in State v. Westfall et al., supra, in which the court said:
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State v. Huffman
...the writ will be Dismissed.' See also, Fiswick v. United States, 329 U.S. 211, 67 S.Ct. 224, 91 L.Ed. 196. In State v. Cohen, 45 Nev. 266, 201 P. 1027, 1029, 18 A.L.R. 864, the defendant was convicted and given an indeterminate sentence of one month to one year. After serving one month he b......
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...where the defendant has already satisfied the challenged judgment. Bryan v. State, 78 Nev. 38, 368 P.2d 672 (1962); State v. Cohen, 45 Nev. 266, 201 P. 1027 (1921). Likewise, Nevada affords persons not incarcerated relief from an illegal judgment of conviction only by way of appeal or writ ......
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