Gabis

134 N.E. 267, 240 Mass. 465, 1922 Mass. LEXIS 783

• Court: Massachusetts Supreme Judicial Court
• Decided: March 1, 1922
• Status: Published

Opinion

Rugg, C. J.

This is a petition for a writ of error. The petitioner was brought before a district court on a complaint charging him with the crime of keeping intoxicating liquor with intent to sell the same contrary to law. He was found guilty and on June 25, 1921, was sentenced to pay a fine of $100 and to be committed to the house of correction for the term of one month. It was then ordered that the sentence be suspended to December 27, 1921. The record of the court thereafter is in these words: “Fine paid June 25/21 On Aug. 5, 1921 suspension of sentence revoked and committed to the H[ouse] of Correction. Mittimus.” The single assignment of error is that on August 5, 1921, the district court had no jurisdiction to order execution.of the part of the sentence relating to imprisonment after a part of the entire sentence had been executed by payment of the fine and the petitioner then had been permitted to go at large.

This petition was filed on August 30, 1921. Manifestly the sentence expired by its own, terms five days later. The petitioner must have been discharged on September 4, 1921.

There is and could be no contention that there was any illegality in the sentence of fine and imprisonment imposed on June 25,1921. That was within the terms of the statute. G. L. c. 138, §§ 2, 86. No allegation of error is made in the petition of anything occurring before August 5, when the suspension of sentence was revoked and the portion of the sentence as to commitment to the house of correction was put in execution. It is indubitable that the suspension of the sentence to a time certain was within the jurisdiction of the court. That was not a final but a temporary disposition. Commonwealth v. Dowdican’s Bail, 115 Mass. 133. Marks v. Wentworth, 199 Mass. 44. Renado v. Lummus, 205 Mass. 155. G. L. c. 218, § 38. See Ex parte United States, 242 U. S. 27, 47-50. That sentence could not be revoked by writ of error because it was in conformity to law.

The alleged error relates only to the commitment to imprisonment at a time subsequent to the payment of the fine. That imprisonment, however, has been fully executed. Since the enactment of St. 1851, c. 87 (see now G. L. c. 250, § 12), if there is error in the sentence this court may render the correct judgment. Error in sentence is not now, as it formerly was, ground for discharge from a correct conviction. Commonwealth v. Murphy, 174 Mass. 369. Where the portion only of the sentence, of which complaint is made, is imprisonment which has been wholly served, there is nothing upon which the writ of error can operate. The conviction cannot be set aside. The fine was not erroneous. Consideration of the question whether such portion of the sentence as relates to the imprisonment was unlawful, is moot for every practical purpose. This court does not consider moot questions. Sullivan v. Secretary of the Commonwealth, 233 Mass. 543. Cases like Haynes v. Commonwealth, 107 Mass. 194, Commonwealth v. Fleckner, 167 Mass. 13, Walsh v. Commonwealth, 224 Mass. 39, are distinguishable.

Petition dismissed.