Welch v. State
| Decision Date | 01 June 1921 |
| Citation | 113 A. 737 |
| Parties | WELCH v. STATE. |
| Court | Maine Supreme Court |
Exceptions from Supreme Judicial Court, Androscoggin County, at Law.
Edward O. Welch pleaded guilty to illegal possession of intoxicating liquors. His case was placed on the special docket, and he was sentenced at the next term, and he excepted. Exceptions overruled.
Argued before CORNISH, C. J., and SPEAR, HANSON, PHILBROOK, DUNN, WILSON, and DEASY, JJ.
H. E. Holmes, of Lewiston, for plaintiff.
Benjamin L. Berman, Co. Atty., of Lewiston, for the State.
CORNISH, C. J. Writ of error before the law court under R. S. c. 82, § 47. The record facts upon which the writ is based are these: At the October term, 1920, of the superior court for Androscoggin county, the plaintiff in error pleaded guilty to a complaint for illegal possession of intoxicating liquors, and the court, without imposing) sentence, ordered the case placd on the special docket. At the December term, 1920, according to the recorded judgment:
"The case is ordered brought forward from the special docket, and it is considered and ordered by the court that the said Edward O. Welch forfeit and pay the sum of $300 to and for the use of the state and the costs of prosecution taxed at $7.30, and in addition thereto be imprisoned at labor in our county jail at Auburn in said county for the term of four months, and in default of payment of said fine and costs be imprisoned at labor in said jail for the term of six months additional, and stand committed in execution of this sentence."
The docket entries are as follows: "Oct. T. 22, Retracts, pleads guilty, S. D."
And then follows this in pencil:
Then the docket entries at the December term are in the usual form:
The pencil memorandum quoted above formed no part of the sentence or judgment. It did not purport to do so. Its apparent purpose was to remind the court of the circumstances if the case should be brought forward in the future for sentence. It had no binding effect upon any one. Even the court did not follow it when sentence was pronounced in December. The judge then imposed a find of $300 instead of the suggested $1,000, and an imprisonment of four months instead of one year. The judge at the October term had the power to impose sentence then, to be" immediately executed, or to suspend the execution of it, or to defer sentence until a future time. He could not make a binding entry as to what sentence should be imposed in the future in case certain conditions were not complied with, even if he had attempted to do so. The law recognizes no such agreement. This pencil memorandum therefore is to be disregarded as of no effect.
The points of attack made by the plaintiff in error may be reduced to two:
First, that the act of the court in imposing sentence at the December term was an abuse of judicial discretion because the plaintiff had in fact returned to the county not in violation of the restriction contained in the pencil memorandum, nor had he since the October term violated the provisions of the prohibitory law, but he had returned in order to prepare the defense of a civil suit that had been brought against him. All these facts are dehors the record, and, even if conceded to be true, are entirely immaterial and can form no basis for a writ of error, because, as before stated, the memorandum itself was void. No question of abuse of judicial discretion is involved.
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Smith v. State
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...ordinary case sentence will be imposed forthwith upon the respondent's request therefor. St. Hilaire was followed in Welch v. State, (1921) 120 Me. 294, 297, 113 A. 737, 738 in which we said: 'The court at that time simply ordered the case placed on the special docket, which is the same as ......
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...error is based upon the record facts alone; facts outside the record are immaterial. Galeo v. State, 107 Me. 474, 78 A. 867; Welch v. State, 120 Me. 294, 113 A. 737. What is technically called the record is, essentially, the certified transcript of the written extension by the clerk of the ......
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