State v. Sturgis

• Decision Date: 20 December 1912
• Citation: 85 A. 474,110 Me. 96
• Parties: STATE v. STURGIS et al.
• Court: Maine Supreme Court

85 A. 474

110 Me. 96

STATE

v. STURGIS et al.

Supreme Judicial Court of Maine.

Dec. 20, 1912.

Agreed Statement from Superior Court, Kennebec County.

Scire facias by the state against Charles E. Sturgis and the sureties on his peace recognizance. Case reported to the law court on an agreed statement Judgment for defendants.

Argued before WHITEHOUSE, C. J., and SAVAGE, SPEAR, CORNISH, KING, and HALEY, JJ.

Joseph Williamson, Co. Atty., of Augusta, for the State.

George W. Heselton, of Gardiner, for defendants.

KING, J. This case is reported to the law court on an agreed statement.

At the January term, 1910, of the superior court for Kennebec county, Me., the defendant Charles E. Sturgis entered a plea of nolo contendere to an indictment pending against him for maintaining a liquor nuisance, and the following sentence was imposed upon him by the court:

"Sentence: Fine $1,000, and, in addition, Imprisonment at hard labor in jail for the term of six months, and, in default of payment of fine, thirty days additional in jail, the imprisonment part of the penalty to be canceled on payment of the fine, if respondent shall recognize with sufficient sureties in the sum of $1,500 to keep the peace and be of good behavior, and especially to violate no provisions of law for the prevention of the traffic in intoxicating liquors for the term of two years."

The fine was paid and the peace recognizance given. Thereafter, at the September term, 1911, of said court, Sturgis entered a plea of nolo contendere to a search and seizure process issued against him for a violation of a provision of law for the prevention of the traffic in intoxicating liquors, and was sentenced thereunder to pay a fine and costs, which he paid. Thereupon, at said September term, 1911, of said court, and after the conviction and sentence of said Sturgis in said search and seizure proceedings, he and his sureties in said peace recognizance were defaulted, and this action of scire facias is brought to recover $1,500 as the penalty of the recognizance.

It must be conceded that a voluntary engagement entered into on the part of a citizen with the state to keep the peace and be of good behavior, and especially not to violate a particular law, would not create an enforceable contract. Therefore the real question presented in this case is whether the recognizance was given in compliance with a lawful requirement therefor.

The statutory penalty for maintaining a liquor nuisance is as follows: "Whoever keeps or maintains such nuisance, shall be fined not less than one hundred dollars and not exceeding one thousand dollars, and imprisonment in jail not less than thirty days and not more than one year, and in default of payment of said fine an additional imprisonment of thirty days in jail." Section 2, c. 22, Revised Statutes, as amended by chapter 231, Laws 1909.

It is also provided by section 1, c. 136, R. S., that where the statute provides for punishment "by imprisonment and fine, or by imprisonment or fine, or by fine and in addition thereto imprisonment," the sentence may be "to either or both." And section 9, c. 136, reads as follows: "In addition to the punishment prescribed by law, the court may require any person convicted of an offense not punishable by imprisonment in the state prison, to recognize to the state, with sufficient sureties, in a reasonable sum, to keep the peace and be of good behavior for a term not exceeding two years, and to stand committed until he so recognizes."

Under these provisions of statute, the court could have sentenced Sturgis for maintaining a liquor nuisance to a fine of not less than $100 nor more than $1,000, or to imprisonment in jail for not less than 30 days nor more than a year, or to both fine and imprisonment And, assuming that the provision of section 9, c. 136, applies to this statutory offense, the court could have required, in addition to the punishment imposed, as prescribed by law, that Sturgis should recognize to keep the peace and be of good behavior for a term not exceeding two years, and to stand committed until he so recognized.

Before passing to the consideration of the construction of the sentence pronounced in this case, it may be well to note some principles applicable to judgments and sentences in criminal cases.

It is fundamental law that the sentence in a criminal case should be definite and certain, and not dependent on any contingency or condition. Bishop, Crim. Proced. § 1309; 19 Ency. Plead. & Prac. p. 476, and cases cited; 12 Cyc. p. 779, and cases cited. Accordingly, where no statute is found to authorize it a sentence in the alternative is bad for uncertainty. In Brownbridge v. People, 38 Mich. 753, the court, referring to Mr. Bishop, said: "He says that, where there are no statutory provisions for sentences in the alternative, 'the judgment should be direct and unconditional and distinctly limited in its terms,' and the authorities he cites and many others fully sustain him."

In State v. Hatley, 110 N. C. 522, 14 S. E. 751, the court said: "It is earnestly insisted by counsel for the defendants that the judgment is an alternative judgment, and as such is void. Is it an alternative judgment? If so, the authorities are abundant to settle the question of its invalidity" —citing Strickland v. Cox, 102 N. C. 411, 9 S. E. 414, where it is said: "Alternative or conditional judgments at law are void in civil as well as in criminal cases. State v. Bennett, 20 N. C. 170; State v. Perkins, 82 N. C. 682." In Miller v. City of Camden, 63 N. J. Law, 501, 504, 43 Atl. 1069, 1070, the court said: "The sentence complained of is further objectionable from a legal standpoint by reason of its alternative character. It leaves it to the prosecutor (the convict) either to pay a fine or submit to a term of imprisonment as he may select." And in Ex parte Martini, 23 Fla. 343, 345, 2 South. 689, 690, it was said: "If the sentence is to be considered as inflicting in the alternative a fine of $100, or the performance of 60 days' work on the public streets as the punishment adjudged for the offense, not only is the latter part of it wholly unauthorized as a punishment by the ordinance denouncing the offense, but the sentence is void for uncertainty. If it be left by the court to either the prisoner, or the ministerial officer of the court having him in charge, or to any one else, to say whether the prisoner shall pay a fine or do something else, then the court has not fixed the sentence, and we have no certain sentence of the court; and whichever of the two things may be done is not done by virtue of any decision of the court as to which shall be done." We find no authorities to the effect that an alternative sentence is valid, except where it is authorized by statute. There is no statutory provision in this state for alternative sentences except that contained in section 5, c. 136, R. S., which is that, when a convict is sentenced to either of the work jails, "the court or magistrate may in addition sentence him to the other punishment provided by law for the same offense, with the condition that if such convict cannot be received at the work jail to which he is sentenced, or if at any time before the expiration of said sentence, in the judgment of the inspectors of jails, he becomes incorrigible, or unsafe, they may order that he suffer such alternative sentence or punishment." That provision is special and limited; and its very enactment emphasizes the fact that alternative sentences without statutory authority therefor are unlawful.

Again, it is a well-recognized principle that, after a sentence has been imposed, the court has no authority to relieve the convict from its execution. The authorities draw a clear distinction between the suspension of the imposition of a sentence and the indefinite suspension or remission of its enforcement. There is a conflict of authority as to the power of the court after a conviction to indefinitely postpone the imposition of the punishment therefor prescribed by law, but, however the courts may differ as to such power, it is well established that the court cannot, after the judgment in a criminal case is rendered and the sentence pronounced, indefinitely postpone the execution of that sentence, or commute the punishment, and release the...