MacKelprang v. Walker

277 P. 401, 74 Utah 121, 1929 Utah LEXIS 7

Opinions

Delroy Mackelprang applied to the district court of Iron county, Utah, for a writ of habeas corpus to obtain his release from the custody of W.G. Walker, the marshal of Cedar City, Iron county, Utah. The application was dismissed. This appeal is prosecuted from the judgment denying applicant's discharge.

Mackelprang claims the right to be discharged from the custody of the marshal upon this state of facts:

On September 27, 1927, a verified complaint was filed in the justice court of Cedar City, Iron county, Utah, charging Delroy Mackelprang with the unlawful possession of one pint of moonshine whisky. Upon being arraigned, Mackelprang entered a plea of guilty. He waived time for passing sentence, whereupon the justice of the peace pronounced sentence to the effect that Mackelprang pay a fine of $75 or serve 75 days in the city jail.

The justice of the peace testified that: "He (Mackelprang) paid $25 and gave a bond for the other $50, to be paid in 30 days." The bond referred to by the justice of the peace provides that the sureties "do hereby undertake and promise that the above-named Delroy Mackelprang, defendant, will appear and pay above sum of $75, or, if he fail to perform the conditions, we will pay to Cedar City in lawful money of the United States the sum of $75." The bond was executed by two sureties and delivered to the justice of the peace.

Neither Mackelprang nor his sureties paid the ramaining $50 of the fine. The justice of the peace did not enter the sentence in his docket or elsewhere. He did, however, make the following notation on a copy of the complaint: "Plead guilty. Fined $75.00 or 75 days in jail. Pd. $25.00." No further proceedings appear to have been had in the case of Cedar City v. Delroy Mackelprang until about March 8, 1928. In the meantime Mackelprang continued to reside with his family at Cedar City, Utah. Between September 27, 1927, and March 8, 1928, he was absent from Cedar City about a week.

It is made to appear that on March 8, 1928, the marshal of Cedar City held Mackelprang in custody upon a commitment issued by the justice of the peace of Cedar City, Utah, in the case of Cedar City v. Delroy Mackelprang. It also appears that on that date, March 8, 1928, the district court of Iron county ordered Mackelprang released. The first order directing the discharge of Mackelprang appears to have been based upon the fact that no written judgment or sentence was entered in the docket of the justice of the peace of Cedar City until after the marshal was ordered to release Mackelprang. As soon as the marshal was directed to release Mackelprang, the justice of the peace of Cedar City made the following written entry in his docket in the case of Cedar City v. Delroy Mackelprang:

"Sept. 27, 1927. Defendant brought into court. Complaint read to defendant and having been duly advised of all legal rights he entered a plea of guilty. The defendant duly waived time for passing the sentence and consented that sentence be passed upon him at that time. Whereupon the defendant was sentenced to pay a fine of $75.00 or serve 75 days in the city jail. $25.00 of said fine was paid. The court granted a stay of execution for ten days upon the defendant furnishing a bond signed by two good and sufficient sureties. Alex H. Rollo, Justice of the Peace."

As soon as the entry was so made in the docket, the justice of the peace issued a commitment in words and figures following (omitting title of court and cause):

"The State of Utah to the Marshal of Cedar City, Iron County, Utah — Greetings:

"Whereas, on the 27th day of September, A.D. 1927, one Delroy Mackelprang was brought before me, Alex H. Rollo, a justice of the peace in and for Cedar City, Iron county, and state of Utah, charged with having in his possession unlawfully one pint of moonshine whisky within the limits of said Cedar City on the 27th day of September, A.D. 1927, contrary to the revised ordinances of Cedar City; and

"Whereas, the said defendant was adjudged guilty of said offense and sentenced to pay $75 or be imprisoned in the city jail for a term of 75 days; and

"Whereas, only $25 of said fine has been paid:

"Now, therefore, you are hereby forthwith commanded to take into your custody the said Delroy Mackelprang and safely keep him until he shall pay the said sum of $50 or secure the same to be paid as provided by law, not exceeding one day in the city jail for each dollar of fine.

"In witness whereof I have hereunto set my hand this 8th day of March, A.D. 1928.

"Alex H. Rollo, "Justice of the Peace."

In this proceeding it is by virtue of the foregoing commitment that the marshal of Cedar City seeks to justify his custody of Mackelprang.

There is a conflict in the adjudicated cases as to the effect of a failure to timely enforce a sentence of imprisonment against one who has been convicted of a crime. If the delay in enforcing a sentence of imprisonment is caused by the pending of a motion in arrest of judgment, a motion for a new trial, in pursuance of a suspended sentence as provided for by Laws Utah 1923, p. 144, c. 74, upon appeal or for other cause necessary to give a defendant ample time and opportunity to avail himself of every safeguard guaranteed him by law, there can be no serious doubt but that a delay in the enforcement of the sentence for any such purpose does not deprive the court of jurisdiction to enforce its judgment. In some jurisdictions it is in effect held that, in the absence of death or the pardon of a defendant, a sentence of imprisonment is satisfied only by the actual suffering of the imprisonment. The following cases support, or tend to support, such view: State v. Drew, 75 N.H. 402, 74 A. 875; Morgan v.Adams, 226 F. 719, 720, 141 C.C.A. 475; State v. Abbott,87 S.C. 466, 70 S.E. 6, 8, 33 L.R.A. (N.S.) 112, Ann. Cas. 1912B, 1189; Norman v. Rehberg, 12 Ga. App. 698, 78 S.E. 256; Exparte Lujan, 18 N.M. 310, 137 P. 587; Fuller v. State,100 Miss. 811, 57 So. 806, 39 L.R.A. (N.S.) 242, Ann. Cas. 1914A, 98;In re Collins, 8 Cal.App. 367, 97 P. 188; Friske v. CircuitCourt, 51 S.D. 415, 214 N.W. 812; Egbert v. Tauer,191 Ind. 547, 132 N.E. 370, 134 N.E. 199; Tanner v. Wiggins, 54 Fla. 203,45 So. 459, 14 Ann. Cas. 718; Daniel v. Persons,137 Ga. 826, 74 S.E. 260; Miller v. Evans, 115 Iowa 101, 88 N.W. 196, 56 L.R.A. 101, 91 Am. St. Rep. 143; Brabandt v.Commonwealth, 157 Ky. 130, 162 S.W. 786; Re Hinson,156 N.C. 250, 72 S.E. 310, 36 L.R.A. (N.S.) 352; Spencer v. State,125 Tenn. 64, 140 S.W. 597, 38 L.R.A. (N.S.) 680.

In other jurisdictions it is held that, if the defendant is permitted to go indefinitely on his own recognizance after sentence is imposed, or if enforcement of the sentence is unreasonably delayed, the court loses jurisdiction to enforce the imprisonment. Ex parte Clendenning, 22 Okla. 108, 97 P. 650, 19 L.R.A. (N.S.) 1041, 132 Am. St. Rep. 628; People v. Barrett,202 Ill. 287, 67 N.E. 23, 63 L.R.A. 82, 95 Am. St. Rep. 230;Weaver v. People, 33 Mich. 296; United States v. Wilson (C.C.) 46 F. 748; Ex parte Peterson, 19 Idaho 433, 113 P. 729, 33 L.R.A. (N.S.) 1067; In re Markuson, 5 N.D. 180, 64 N.W. 939;In re Strickler, 51 Kan. 700, 33 P. 620; Posvar v.McPherson, 36 Wyo. 159, 253 P. 667; In re Flint, 25 Utah 338,71 P. 531, 95 Am. St. Rep. 853; Scottsboro v. Johnston,121 Ala. 397, 25 So. 809; Grundel v. State, 33 Colo. 191,79 P. 1022, 108 Am. St. Rep. 75; Tuttle v. Lang, 100 Me. 123,60 A. 892; State v. Clifford, 84 N.J.L. 595, 87 A. 97; Scott v. Chichester, 107 Va. 933, 60 S.E. 95, 16 L.R.A. (N.S.) 304;In re Webb, 89 Wis. 354, 62 N.W. 177, 27 L.R.A. 356, 46 Am. St. Rep. 846. Other cases dealing with the effect of a delay in the enforcement of sentence of imprisonment are referred to in some of the foregoing citations, but the cases above cited will serve to illustrate the divergent views of judicial opinion.

The case of Reese v. Olsen, 44 Utah 318, 139 P. 941, was cited in the court below in support of the contention that Mackelprang was lawfully held in custody by the marshal of Cedar City. So far as appears from the opinion in that case, the question of a delay in enforcing the imprisonment imposed upon Reese was not involved. Reese was sentenced on March 10, 1914. The opinion was rendered April 4, 1914, at which time Reese had served about 20 days. Reese, therefore, must have been committed within a few days after sentence was passed.

The law announced in the Flint Case, supra, is applicable to the facts in this proceeding. In that case Richard Flint was convicted of the crime of forgery on February 25, 1902. Time for sentence was set for March 5, 1902, and then continued to March 12, 1902. Flint appeared for sentence on the last-mentioned date, at which time the court ordered that sentence be suspended and defendant permitted to go on his own recognizance. On December 5, 1902, the judge before whom the defendant was tried and convicted made and entered an order directing that Flint appear before the court for sentence on Monday, January 5, 1903. On that day time for sentence was continued to January 12, 1903. The defendant appeared on January 12, 1903, and "objected to any further proceedings in the premises on the ground that the court had no jurisdiction of the person of the defendant." The objection was overruled, and the defendant sentenced to serve a term of one year in the state prison. He was committed to the proper officer, with directions that the sentence be enforced. Flint applied to this court for a writ of habeas corpus. It was held that Flint was illegally restrained of his liberty and he was ordered discharged. In the course of the opinion this court said:

"When the court suspended judgment indefinitely, and ordered the defendant discharged from custody, it no longer had jurisdiction over him, and all subsequent proceedings in the premises were unauthorized by law, and are therefore void."

In the proceedings had before the justice of the peace of Cedar City, Mackelprang was discharged from custody when he paid $25 of the fine imposed upon him and furnished a bond for the payment of the remaining $50. There is nothing in the records of the justice of the peace of Cedar City which indicates that the justice's court retained jurisdiction over the person of Mackelprang after the $25 was paid and the bond executed and delivered. The bond contains no provision for the future appearance of Mackelprang, except to pay the remainder of the fine. The justice of the peace who sentenced Mackelprang testified at length in the court below concerning the proceedings had before him in the case of CedarCity v. Delroy Mackelprang. So far as appears from his testimony, the discharge of Mackelprang was unconditional, except as to the fine. According to the justice's testimony the bond was given to secure the payment of the remaining $50 of the fine within 30 days and for no other purpose. The justice of the peace, having elected to accept security for the payment of the remainder of the fine, may not retain the security so given and at the same time direct that Mackelprang be imprisoned. In this case, as in the Flint Case, supra, the defendant was discharged from custody without any order indicating that such defendant would be required to surrender himself for execution of any judgment of imprisonment.

In the case of Rasmussen v. Zundel, 67 Utah 456,248 P. 135, a sentence similar to the one imposed upon Mackelprang was under review by this court. In that case it appears that Rasmussen had been convicted in the city court of Brigham City, Utah, of the offense of killing a deer out of season. The statute under which he was convicted provided that "any person or persons violating any of the provisions of this section shall be deemed guilty of a misdemeanor and if it be a violation of any provision of this section pertaining to elk, deer, antelope, mountain sheep and mountain goat, upon conviction thereof shall be fined in a sum not less than $200.00 or imprisoned not less than ninety days." Upon conviction, the city court entered its judgment, according to the stipulation of facts filed in the district court, that Rasmussen "was then and there sentenced by the court to either pay a fine of $200 or spend 90 days in the county jail." Rasmussen failed to pay the fine and was therefore "remanded to the custody of the sheriff of Box Elder county to serve the 90 day jail sentence." Rasmussen applied to the district court of Box Elder county for a writ of habeas corpus, claiming that he was unlawfully restrained of his liberty by the sheriff of Box Elder county. A hearing was had in the district court. Rasmussen was denied a discharge from custody. Upon an appeal to this court, he was ordered discharged. In the course of the opinion, written by Mr. Chief Justice Gideon, it is said:

"The stipulation is that defendant was either to pay a fine of $200 or spend 90 days in jail. In other words, the court apparently left it to the defendant or to the sheriff to determine which sentence should be imposed. It is elementary that judgment, especially in criminal cases, should be definite, and ministerial officers should not be left in doubt as to what sentence is to be imposed. It is not necessary to cite authority to support that proposition. The judgment in this case was not in the alternative — that upon failure to pay a fine the appellant should be imprisoned at hard labor until such fine has been paid — as the court was authorized to impose by section 9450, Comp. Laws Utah 1917."

The same uncertainty that existed in the sentence imposed upon Rasmussen in the foregoing case exists in the sentence of Mackelprang. The ordinance of Cedar City which Mackelprang violated is not before us, and therefore we are not advised whether such ordinance provides for the payment of a fine or for imprisonment or both. But, whatever be the provisions of the ordinance, such provisions cannot make certain the sentence imposed upon Mackelprang.

It will be observed that the commitment under which Mackelprang was being held by the marshal of Cedar City is uncertain as to the length of time that Mackelprang was to be imprisoned, in the event that the remainder of the fine was not paid. The commitment provides that Mackelprang shall be held until he pays or secures the payment of $50, but the imprisonment shall not exceed "one day in the city jail for each dollar of fine," Whether the word "fine" refers to the unpaid part of the fine or the whole fine is not clear. Neither is the language clear as to the minimum time that Mackelprang shall serve in the city jail in the event the remainder of the fine is not paid.

There are a number of other irregularities urged, but in view of the conclusions we have reached it is not necessary to discuss other phases of the case, and hence we express no opinion as to the sufficiency of the commitment under which Mackelprang was held, or the other irregularities urged by the appellant.

We are of the opinion that the issuance of the second commitment in the case of Cedar City v. Delroy Mackelprang and all proceedings had thereunder were unauthorized by law and hence void. He is entitled to a discharge.

Such is the order.

EPHRAIM HANSON, J., concurs.