State v. District Court of First Judicial Dist. in and for Lewis and Clark County

• Citation: 233 P. 957,72 Mont. 374
• Decision Date: 14 February 1925
• Docket Number: 5678.
• Parties: STATE ex rel. v. DISTRICT COURT OF THE FIRST JUDICIAL DISTRICT IN AND FOR LEWIS AND CLARK COUNTY et al. FOOT, Atty. Gen.,
• Court: Montana Supreme Court

233 P. 957

72 Mont. 374

STATE ex rel. FOOT, Atty. Gen., v. DISTRICT COURT OF THE FIRST JUDICIAL DISTRICT IN AND FOR LEWIS AND CLARK COUNTY et al.

No. 5678.

Supreme Court of Montana

February 14, 1925

Petition for writ of supervisory control by the State of Montana, on the relation of L. A. Foot, Attorney General, against the District Court of the First Judicial District in and for Lewis and Clark County and W. H. Poorman, a Judge thereof. Writ denied, and proceeding dismissed.

L. A Foot, Atty. Gen., and I. W. Choate, Asst. Atty. Gen., for relator.

J. P Donnelly, of Havre, for respondents.

STARK J.

On December 15, 1923, in the district court of Hill county Charles Gies entered a plea of guilty to an information charging him with the crime of unlawfully selling intoxicating liquor, a misdemeanor; whereupon, as appears from the clerk's record of the proceeding, "it was ordered that said defendant be punished by imprisonment in the county jail of Hill county for a term of 90 days, and pay a fine of $200. * * * On recommendation of the county attorney, the jail sentence was then suspended." The defendant was then remanded to the custody of the sheriff and on said day paid the fine of $200 and was released from custody.

On December 6, 1924, the court caused the following entry to be made in its minutes in said cause:

"In this case, the minute entry of the clerk is corrected to speak the truth which was and is, that upon the date of pronouncing judgment in this case, to wit December 15, 1923, it was then and there the order of this court that the jail sentence imposed of 90 days' imprisonment in the county jail be suspended pending the good behaviour of the defendant. It appearing to the court that the defendant, Charles Gies, has violated the conditions under which his sentence was suspended; the clerk is hereby ordered to issue a commitment and place the same in the hands of the sheriff for service."

In accordance with the command of this minute entry the clerk of the court issued a commitment, by virtue of which the sheriff of Hill county took the defendant, Gies, into custody, and imprisoned him in the county jail to serve out the 90-day sentence.

Claiming that such restraint and imprisonment by the sheriff was unlawful, on December 9, 1924, J. P. Donnelly, on behalf of Gies, filed in this court his petition for a writ of habeas corpus, which was granted; a writ was issued made returnable before Honorable W. H. Poorman, one of the judges of the First Judicial District, on the 12th day of December, 1924. To this writ the sheriff filed his return, setting forth that he held Gies in his custody under the commitment issued out of the district court of Hill county under the circumstances above related. The matter was submitted to Judge Poorman upon the petition and return, and, after argument of counsel, he made an order directing that Gies be forthwith released from such imprisonment by the sheriff of Hill county.

On December 16, 1924, the Attorney General filed a petition in this court, reciting the above facts, alleging that although the order of Judge Poorman was made within jurisdiction, it was nevertheless erroneous, arbitrary, and without warrant of law; that gross injustice to the state of Montana was threatened by said order in that the result of it was to nullify a lawful commitment issued by a court of competent jurisdiction, and to permit a person lawfully convicted of crime to avoid serving the sentence imposed. Deeming the circumstances sufficient to justify it, this court thereupon issued an order directed to the said district court of the first judicial district and to the Honorable W. H. Poorman, the judge thereof, commanding that they appear on the 15th day of January, 1925, and show cause why a writ of supervisory control should not issue directing said court and judge to set aside and annul the order so made on December 12, 1924. Upon the return day of this order the respondents appeared by counsel, and moved the court to dismiss the proceeding on the ground that the facts stated in the petition are insufficient to move the court to the exercise of its supervisory power.

To support his contention that Judge Poorman erred in ordering the release of Gies, the Attorney General argues: (1) That the courts of this state have no inherent power to permanently suspend sentences in criminal cases; (2) that our statutes do not authorize the courts to suspend sentences in misdemeanor cases; and (3) that even if the power to suspend sentences in misdemeanor cases does exist, there was no legal suspension of the sentence in this instance by reason of failure to comply with the statutory requirements.

We need not pause to consider whether our district courts possess the inherent power to suspend permanently the execution of a sentence in a criminal case, for, during all the times here involved, section 12078, Revised Codes of 1921, was in full force, and it provides:

"In all prosecutions for crimes or misdemeanors, except as hereinafter provided, where the defendant has pleaded or been found guilty, or where the court or magistrate has power to sentence such defendant to any penal or other institution in this state, * * * said court may suspend the execution of the sentence and place the defendant on probation in the manner hereinafter provided. * * *"

But the Attorney General insists that in enacting this section the Legislature did not intend that it should apply to misdemeanor cases where the imprisonment of the defendant is to be in a county jail, because the subsequent provisions for the supervision of one who has been given the benefit of a suspended sentence and placed on probation, appear to have application only to one whose confinement would be in the state prison or some other state penal institution, and in this connection refers to section 12080, Revised Codes of 1921, which is as follows:

"Whenever a sentence to any penal or other institution in this state has been imposed, but the execution thereof has been suspended and the defendant placed on probation, the effect of such order of probation shall be to place said defendant under the control and

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