Wallace v. White

• Decision Date: 26 December 1916
• Citation: Wallace v. White, 115 Me. 513, 99 A. 452 (Me. 1916)
• Parties: WALLACE v. WHITE, Sheriff.
• Court: Maine Supreme Court

99 A. 452

115 Me. 513

WALLACE

v. WHITE, Sheriff.

Supreme Judicial Court of Maine.

Dec. 26, 1916.

Report from Supreme Judicial Court, Penobscot County, at Law.

Petition by Joseph Wallace for writ of habeas corpus against T. Herbert White, Sheriff.Heard on report.Writ discharged petitioner remanded to the custody of the jailor in execution of sentence.

Argued before SAVAGE, C. J., and KING, BIRD, HALEY, HANSON, PHILBROOK, and MADIGAN, JJ.

Edward P. Murray and Terence B. Towle, both of Bangor, for petitioner.William B. Peirce, Co. Atty., and Charles J. Hutchings, both of Bangor, for defendant.

SAVAGE, C. J. Petition for writ of habeas corpus.The cause conies before this court on report.The facts are these: The defendant was convicted in the Bangor municipal court on two search and seizure processes, under section 49 of chapter 29 of the Revised Statutes, which chapter is the prohibitory liquor statute.On each process he was sentenced to pay a fine and costs, and to be imprisoned 60 days in the county jail, He appealed on each, and gave bail for his appearance at the nest term of the Supreme Judicial Court.He did not appear at that term, but was defaulted; and in each case the judgment of the court below was affirmed, with additional costs, amounting to $3.30, in his absence.After the adjournment of the term, the clerk issued mittimuses upon the affirmed judgments, as of course, without special order, and the petitioner was arrested thereon by the sheriffs deputy, and committed to jail in execution of the sentences.From this imprisonment he seeks to be released on habeas corpus.

The affirmation of the sentences was made by virtue of Revised Statutes, c. 29, § 63, which provides that in appeals in cases of violation of the liquor law, "if a claimant or other respondent fails to appear for trial in the appellate court, the judgment of the court below, if against him, shall be affirmed."The word "judgment" in this statute refers not only to the adjudication of guilt, but also to the sentence imposed, the entire judgment.Such appears to have been the intent of the Legislature, and such has been the construction placed upon it in all cases.

Each mittimus contained an order to the officer "to take the body" of the petitioner and commit him to jail.

The petitioner contends: (1) That since the petitioner was not in court at the time of the affirmation of sentance, the court had no jurisdiction over him to impose the payment of costs as a part of the sentence in addition to the original sentence; (2) that the clerk without special direction of the court had no authority to issue a mittimus by which the petitioner could be taken wherever he might be found, as well as in court.

By the common law, when imprisonment is to be inflicted as a punishment, it is absolutely necessary that the respondent be personally present.1 Bishop on Criminal Procedure, § 275.But it is not claimed by counsel for the petitioner that it is not competent for the Legislature to provide that, when one has been convicted of a misdemeanor, has been sentenced to imprisonment by an inferior court, has appealed, and has defaulted in the appellate court, the sentence may be affirmed by the latter court, in his absence.Such a statute violates no constitutional guaranty, and we know of no reason why it is not within legislative power.

The petitioner's contention is that the appellate court in this case by affirming the sentence below and imposing additional costs, virtually imposed a new sentence, that if the petitioner failed to pay the additional costs, as well as the original fine and costs, he was subject to additional imprisonment for at least 30 days (R. S. c. 136, § 12), and that such a sentence could not lawfully be imposed in the absence of the petitioner.In this case it is not very material whether the additional detention for nonpayment of the fine is a punishment or not, for certainly the penaity was increased by the amount of the additional costs.Some courts have held that the detention is not a punishment, but only a mode of enforcing the fine.Son v. People, 12 Wend. (N. Y.) 344;People v. Markham, 7 Cal. 208.

We will examine first the authority of the appellate court to impose the additional costs.The statute in terms merely authorizes the court to affirm the judgment below.It is silent on the matter of costs.By R. S. c. 136, § 1, it is expressly provided that for violations of section 49 of chapter 29 the convict shall be sentenced to pay costs, and this was the section violated by the petitioner.But in the lower court this provision was complied with.He was sentenced to pay costs.And the affirmance of that sentence likewise condemned him to pay those costs.So that if section 1 of chapter 136 applies to proceedings under section 63 of chapter 29, it was complied with.A reference to R. S. c. 133, § 18, will, we think, throw some light on the question of legislative intention.That section relates to appeals in general from magistrates.It says:

"If the appellant does not appear and prosecute his appeal, his default shall be noted on the record; and the court may * * * issue a capias against the body of the appellant, bring him into court, and then affirm the sentence of the magistrate with additional costs."

The distinction between the two statutes seems to be marked.In the one the respondent must be brought into court before the sentence is affirmed with additional costs.In the other, the sentence can be affirmed in the absence of the respondent, but the statute is silent as to costs.We think this distinction in language should be observed in construction, and that it should be held that the statute(R. S. c. 29, § 63) authorizing the appellate court to affirm a sentence did not authorize it to add to it or in any way change it.

The statute, however, is permissive.It does not require affirmation of sentence.If the appellate court is of opinion that the sentence below should be modified, increased, or lessened, it can issue capias, have the respondent brought before it, and impose such sentence as the law authorizes and justice requires.In this case, the appellant was not brought into court, but, notwithstanding, the sentence was increased by the amount of the costs.To that extent, we think the appellate court exceeded its authority.

But it by no means follows that the petitioner is entitled to be discharged on habeas corpus.This was not, as the petitioner claims, the imposition of a new sentence.The old sentence was affirmed, and was right.The addition was unauthorized, and wrong.The two are severable.The unauthorized part may be void, and at the same time the authorized part in force.

The granting or refusing the writ in this case is discretionary.O'Malia v. Wentworth, 65 Me. 129."Persons convicted, or in execution upon legal process, criminal or civil," are not entitled of right to have the writ of habeas corpus.R. S. c. 101, § 5.But it is a discretion to be exercised according to settled legal principles, so far as they apply.And one principle is that if the judgment is void, as for want of jurisdiction, the prisoner is entitled to his discharge, but not if it is merely erroneous.SeeIn re Fanton, 55 Neb. 703, 76 N. W. 447, and cases cited in note to same case in 70 Am. St. Rep. 418;Re Taylor, 7 S. D. 382, 64 N. W. 253, 45 L. R. A. 136, note, 58 Am. St. Rep. 843.

Though there is some conflict in the cases, the very great weight of authority is to the effect that a sentence which imposes a punishment in excess of the power of the court to impose it is not necessarily void in toto, but is valid, when severable, to the extent that the court had power to impose it, although void as to the excess.Mr. Church in his work OH Habeas Corpus says:

"A judgment is not void because an excessive punishment has been imposed, except as to the excess."Section 370.

And again in section 373:

"The prevailing rule is that an excessive sentence is merely erroneous and voidable; that the whole sentence is not illegal and void because of the excess; that it is not void ab initio: and that it is good on habeas corpus so far as the power of the court extends, and invalid only as to the excess."

This doctrine is sustained by People v. Jacobs, 66 N. Y. 8;People v. Baker, 89 N. Y. 460;People v. Markham, 7 Cal. 208;Ex parte Mitchell, 70 Cal. 1, 11 Pac. 488;Ex parte Erdmann, 88 Cal. 579, 26 Pac. 372;In re Graham, 74 Wis. 450, 43 N. W. 148, 17 Am. St. Rep. 174;Lowrey v. Hogue, 85 Cal. 600, 24 Pac. 995;Ex parte Mooney, 26 W. Va. 36, 53 Am. Rep. 59;Ex parte Crenshaw, 80 Mo. 447;Ex parte Shaw, 7 Ohio St. 81, 70 Am. Dec. 55;Ex parte Van Hagan, 25 Ohio St 427;State v. Klock, 48 La. Ann. 67, 18 South. 957, and cases cited in note to same case in 55 Am. St. Rep. 259;In re Graham, 138 U. S. 461, 11 Sup. Ct. 363, 34 L. Ed. 1051; Brooks v. Commonwealth, 4 Leigh (Va.) 669;Feeley's Case, 12 Cush.(Mass.) 598;Sennott's Case, 146 Mass. 489, 16 N. E. 448, 4 Am. St. Rep. 344.In the last-cited casethe court said:

"The better rule seems to be, that where a court has jurisdiction of the person, and of the offense, the imposition by mistake of a sentence in excess of what the law permits is within the jurisdiction, and does not render the sentence void, but only voidable by proceedings upon a writ of error."

It is also generally held that when the sentence is for a longer period than prescribed by law the prisoner is not entitled to be discharged on habeas corpus until he has served the prescribed definite term.People v. Markham, supra;Ex parte Mooney, 26 W. Va. 36, 53 Am. Rep. 59;In re Taylor, 7 S. D. 382, 64 N. W. 253, 45 L. R. A. 136, 58 Am. St. Rep. 843;In re Paschal, 56 Kan. 123, 42 Pac. 373;De Bara v. United States, 99 Fed. 942, 40 C. C. A. 194;In re Fanton, supra;People v. Baker, supra;Feeley's Case, supra.In Re Swan, 150 U. S. 637, 14 Sup. Ct. 225, 37 L. Ed. 1207, a contempt case,...