State v. Zolantakis

• Decision Date: 15 September 1927
• Docket Number: 4458
• Court: Utah Supreme Court
• Parties: STATE v. ZOLANTAKIS

259 P. 1044

70 Utah 296

STATE v. ZOLANTAKIS

No. 4458

Supreme Court of Utah

September 15, 1927

Appeal from District Court, Third District, Salt Lake County; W. S Marks, Judge.

Peter Zolantakis pleaded guilty of, and was given a suspended sentence for, being a persistent violator of the Prohibition Act. From a judgment vacating the suspension and ordering defendant's commitment to the state prison, he appeals.

REVERSED, and defendant ordered discharged.

F. W James, of Salt Lake City, for appellant.

Harvey H. Cluff, Atty. Gen., and L. A. Miner, Asst. Atty. Gen., for the State.

HANSEN J. THURMAN, C. J., and STRAUP, J., concur. CHERRY, J., GIDEON, J., dissenting.

OPINION

HANSEN, J.

The defendant prosecutes this appeal from a judgment of the district court of Salt Lake county whereby a suspension of a sentence was vacated and the defendant ordered committed to the state prison for the crime of being a persistent violator of the prohibition law of the state. The case was heretofore argued and submitted to this court and an opinion rendered by a divided court affirming the judgment. Thereafter defendant filed a petition for rehearing, which was granted. The majority of the court at the time the rehearing was granted, and as now constituted, are not in accord with the conclusions reached by the majority of the court in the original opinion.

On July 23, 1925, Peter Zolantakis pleaded guilty to a charge of being a persistent violator of an act prohibiting the manufacture and use of intoxicating liquors and regulating the sale and traffic therein, and particularly sections 3343, and 3345 of title 54, Comp. Laws Utah 1917, as amended by Laws Utah, 1919, c. 66. Thereupon the court pronounced judgment and sentence "that the defendant, Peter Zolantakis, be confined and imprisoned in the state prison in and for the state of Utah, for an indeterminate term, as provided by section 9062, Compiled Laws Utah 1917, and that said sentence be, and the same hereby is, suspended during the good behavior of said defendant." The crime to which defendant pleaded guilty is a felony.

The power of trial courts to suspend sentence is expressly granted by the provisions of chapter 74, Laws Utah 1923, which reads as follows:

"Upon conviction of any crime or offense if it appears compatible with the public interest the court having jurisdiction may suspend the imposition or the execution of sentence and may place the defendant on probation for such period of time as the court shall determine. The court may subsequently increase or decrease the probation period and may revoke or modify any condition of probation. While on probation the defendant may be required to pay in one or several sums any fine imposed at the time of being placed on probation; may be required to make restitution or reparation to the aggrieved party or parties for the actual damages or losses caused by the offense for which conviction was had; and may be required to provide for the support of his wife and others for whose support he may be legally liable."

Under date of March 5, 1926, a citation was issued under the seal and signature of the clerk of the district court of Salt Lake county whereby the defendant was cited and required to appear before said district court of Salt Lake county on Saturday, the 6th day of March, A. D. 1926, at 10 o'clock a. m. of that day, then and there to show cause why the suspended sentence dated July 23, 1924, should not be canceled, vacated and set aside. This citation was returned without having been served because, as stated in the sheriff's return, the defendant was absent from the state. On April 5, 1926, a bench warrant was issued directing the sheriff of Salt Lake county to attach the body of the defendant and bring him before the court forthwith. The bench warrant was served upon the defendant on the date of its issuance and the defendant was arrested. Under date of April 6, 1926, another citation was issued under the seal and signature of the clerk of the district court of Salt Lake county whereby defendant was cited and required to appear before said court "on Saturday, the 10th day of April, A. D. 1926, at 10 o'clock a. m. of that day then and there to show cause, if any you have, why your suspended sentence should not be vacated and set aside." Both of these citations and the bench warrant were issued without any affidavit, complaint, information, motion, or other writing having been made or filed charging the defendant with any lack of good behavior or otherwise, and were made returnable before a judge other than the judge who passed sentence and suspended the same.

When the case was called for hearing, the following proceedings were had:

D. H. Clayton, a witness called by the state, testified, in substance, that during the month of February, 1926, he went to a point a little south of or opposite the place where Mr. Zolantakis resided, and while there saw Zolantakis come out of the rear door of the house and walk to the back of the lot, then back into the house, and, after remaining in the house for a few minutes, he came out of the side gate into an alley.

Reed Billings, a witness called by the state, testified that he was, and for a number of years had been, a police officer of Salt Lake City; that he was and had been acquainted with Peter Zolantakis for the past 7 or 8 years; that defendant resided at 47 South Fifth West street with his family, consisting of a wife and at least two children; that on March 2, 1926, while crossing the street from the residence of defendant, he saw Mr. Zolantakis come out of the side door of the house and go down towards the garage, then turn around and go back into the house; that about 3 or 4 minutes later defendant came out of the house again and went south on Fifth West street to Second South street, then east on Second South street; that this occurred about 6 or 6:30 o'clock in the morning.

A. A. Reese, called by the state, testified that he has known the defendant, Peter Zolantakis, by sight for about 2 years; that defendant resided at 47 South Fifth West street; that the wife and children of the defendant resided in his house; then on March 2, 1926, witness went to the house of the defendant in company with Officers Neve, O'Brien, and Black; that they had a search and seizure warrant and made a search of defendant's premises; that as a result they found about 30 pints of intoxicating liquors, consisting of moonshine whiskey and mestika; that some of the liquor was found in a cupboard in a cache on the side of the wall, and some under the floor; that the wife and daughter of the defendant were at the house at the time of the search; that defendant's wife said that Mr. Zolantakis had gone up town, but would be back again for supper; that the witness told defendant's wife to tell her husband to report at the office of Lieutenant Clayton the next morning at 10 o' clock; and that she said she would so inform her husband.

Two of the bottles which were found by the officers in the home of defendant were received in evidence.

Neither at the time of the hearing nor prior thereto was defendant asked to plead, answer, or admit, or deny any charge made against him. Nor was the defendant advised of any charge against him, nor of what the court was about to investigate. Soon after the hearing began defendant's counsel moved that the citation be dismissed for the reason no affidavit or complaint had been filed and defendant was not apprised of any fact or facts or charge that he was expected to meet. The objection was overruled. The attorney for the state asked leave to amend the citation, but the request was denied. Defendant, through his attorney, attempted to cross-examine each of the witnesses called by the state, but the court, upon its own motion, denied the right of cross-examination for the reason, as stated by the court, it did not wish the proceedings to "savor of the dignity of a trial."

Peter Zolantakis was sworn and testified that he was not the defendant in this action, and that he did not reside on Fifth West street, in Salt Lake City, on March 2 and 3, 1926. No attempt was made on the part of the attorney for the state to cross-examine the witness Peter Zolantakis.

At the conclusion of the proceedings the court ordered the suspension of sentence vacated and set aside and the defendant, Peter Zolantakis, imprisoned in the state prison as hereinbefore indicated.

The defendant assigns as error, among others (a) the refusal of the trial court to dismiss the citation for the reason that there was no affidavit or other basis apprising defendant of what facts he was to meet or what charge was made against him; (b) that the court erred in denying defendant the right to cross-examine the witnesses called for the state.

That the trial court had power to suspend sentence, under the provisions of chapter 74, Laws Utah 1923, is clear and is not questioned. The statute above quoted, it will be observed, grants to the trial court broad and comprehensive discretionary powers as to the terms and conditions upon which it may suspend sentence. In the instant case, it will further be observed, the sentence was suspended during the good behavior of the defendant without any reservations. In 16 C. J. 1335, § 4141, the law is stated thus:

"A court having power to make an order suspending the execution of its judgment in criminal cases, necessarily, upon violation of such order, has the power to revoke the same and to enforce the original judgment by commitment; and such right is not impaired or limited by the passing of the term in which such suspension is made. Where, however, the suspension is upon conditions expressed in the judgment, the prisoner has the right to rely upon...