State v. Dean Barnett

• Decision Date: 07 January 1939
• Parties: STATE v. DEAN BARNETT
• Court: Vermont Supreme Court

3 A.2d 521

110 Vt. 221

STATE v. DEAN BARNETT

Supreme Court of Vermont

January 7, 1939

November Term, 1938.

1. Consideration of Exceptions to Findings Not Precluded by Lack of Exception to Judgment---2. Jurisdictional Question Never out of Time---3. Probation Akin to Conditional Pardon---4. Terms Permissible in Conditional Pardon---5. Wide Discretion Allowed in Imposing Conditions of Probation---6. Restitution Defined---7. Restitution as Condition of Probation---8. Condition for Weekly Payments Not One of Restitution Where Respondent Convicted of Violation of P. L. 5156, Leaving Scene of Accident---9. "Public Policy" Explained---10. When Condition of Probation Is Illegal as against Public Policy---11. Scope of Question as to Legality of Condition---12. Condition of Probation Requiring Weekly Payments by Respondent Convicted of P. L. 5156 Held Void---13. Violation of Legal Condition against Use of Intoxicants Held Not to Support Judgment as to Breach---14. Jurisdiction Defined---15. Act Beyond Jurisdiction Void---16. Essentials of Complete Jurisdiction---17. Judgment as to Breach of Probation Void Where Based on Illegal Condition---18. Jurisdiction to Impose Illegal Condition of Probation Not Conferred by Consent Agreement or Waiver---19. Jurisdiction Cannot Be Conferred by Consent---20. Question of Jurisdiction to Render Judgment as to Breach of Probation Held Sufficiently Raised---21. Duty of Supreme Court to Consider Jurisdictional Question Apparent from Record.

1. The fact that no exception was taken to judgment in proceedings on complaint for breach of probation did not preclude Supreme Court from considering exceptions properly raised and brought before Court to findings upon which validity of judgment depended, especially when jurisdictional question was raised.

2. Jurisdictional question may be raised at any stage of case and is never out of time.

3. Placing person on probation is akin to issuance of conditional pardon.

4. Conditional pardon can be granted upon any terms or conditions provided they are not illegal, immoral, impossible of performance, or unreasonable.

5. Court should be allowed wide discretion in imposing conditions of probation, but such discretion is not without limitation.

6. Restitution is the act of restoring, restoration of anything to its lawful owner, the act of making good, or of giving an equivalent for any loss, damage or injury.

7. Restitution which respondent may be required to make as a condition of placing him on probation must be for loss sustained as direct consequence of commission of particular crime of which respondent stands convicted.

8. On review of breach of probation proceedings, where respondent convicted of violation of P. L. 5156, which requires operator of automobile who has been involved in accident to stop and render assistance and give information, had been placed on probation on usual conditions and on further condition that he make weekly payments apparently in settlement for damages incurred in accident in which he was involved, held that it was to be inferred from record that damages in question were not those resulting from respondent's failure to stop and render assistance and that condition was not properly one of restitution.

9. Term "public policy" is of such vague and uncertain meaning, and of such variable quantity, as not to be susceptible of exact or precise definition, but it may be said that that which conflicts with the morals of the time and contravenes any established interest of society, is against public policy.

10. Condition imposed by court in placing respondent on probation is not illegal and void as being against public policy unless it is injurious to interests of public or contravenes some established interest of society.

11. Question as to legality of condition imposed by court in placing respondent on probation involved right of court to act, and not merely right of individual, and hence affected interests of people of the State as a whole.

12. Condition imposed by court in probation order that respondent convicted of violation of P. L. 5156 (leaving scene of accident) make weekly payments apparently in settlement of claim for damages arising out of the accident, was illegal and void as being against public policy.

13. In proceedings on complaint for breach of probation, where respondent, convicted about eight years before of violation of P. L. 5156 (leaving scene of accident), and placed on probation on usual conditions, with added illegal condition that he make weekly payments, apparently in settlement of claim for injuries sustained in the accident, was found to have violated condition forbidding use of intoxicating liquor and condition with respect to payments, and where it appeared that the illegal condition was the main reason for the original probation and its long term and for the judgment as to the breach of probation, held that the legal condition could not be separated from the illegal so as to support the judgment.

14. Jurisdiction of a court is not only power to hear and determine a cause but also power to render the particular judgment which was rendered and to carry it into effect.

15. Every act of a court beyond its jurisdiction is void.

16. Jurisdiction, in order to be complete, must be of the process, the person and the subject matter.

17. In proceedings on complaint for breach of probation, court had no power to render or enforce judgment against respondent which was based upon illegal condition in probation order and judgment was coram non judice and void.

18. Judgment in proceedings on complaint for breach of probation, which was based upon violation of illegal condition in probation order, could not be made good nor could jurisdiction to render the judgment be conferred by consent, agreement or waiver on part of respondent with respect to the illegal condition.

19. Where no jurisdiction exists by law, it cannot be conferred by consent.

20. In proceedings on complaint for breach of probation, exception of respondent to jurisdiction of court to make illegal condition in the original probation order sufficiently raised question as to jurisdiction of court to render judgment as to breach of probation.

21. Where record brought to attention of Supreme Court apparent lack of jurisdiction in court below to render judgment in respect to breach of probation, it became duty of Supreme Court to consider and determine this question regardless of manner in which it was raised.

COMPLAINT for breach of probation alleging violation of condition forbidding use of intoxicating liquor and of condition that respondent make restitution through weekly payments for the benefit of one Dunn. Heard in Barre municipal court, H. William Scott, Municipal Judge. Judgment that the respondent had violated both the said conditions and sentence thereon. The respondent excepted. The opinion states the case.

Judgment reversed. Sentence set aside and respondent discharged.

C. O. Granai for the respondent.

Webster E. Miller, State's Attorney, for the State.

Present: MOULTON, C. J., SHERBURNE, BUTTLES, STURTEVANT and JEFFORDS, JJ.

OPINION

JEFFORDS

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 20, 1929. On September 23, 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 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. 20, 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 12, 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 10, 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 15, 1937, the...