State ex rel. Pfann v. Kunkel

North Dakota Supreme Court

State ex rel. Pfann v. Kunkel

206 N.W. 230, 53 N.D. 389

CourtNorth Dakota Supreme Court

DecidedNovember 13, 1925

StatusPublished

Cited by1 cases

This text of 206 N.W. 230 (State ex rel. Pfann v. Kunkel) is published on Counsel Stack Legal Research, covering North Dakota Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

State ex rel. Pfann v. Kunkel, 206 N.W. 230, 53 N.D. 389 (N.D. 1925).

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Opinion

fToiiNsoN, J.

The petitioner pleaded guilty to tlie charge of maintaining a common nuisance and was, on April 1, 1925, sentenced by the county court of Wells county, to serve ninety days in jail, and to pay a fine of $200 and costs. As part of the sentence, the court said: “It is further the sentence of the court that you may be released from serving the jail sentence at the present time, but that you are to appear before this court August 1, 1925, for further orders.” After some; intermediate but immaterial proceedings, the judge, on October 1, 1925, directed the sheriff to take the petitioner into custody and imprison him in the county jail for a period of ninety days from and after October 1, 1925. The sheriff proceeded to execute the order and the petitioner applied for a writ of habeas corpus in the district court. The application having been denied, he comes to this court, asking that the writ issue.

Iielying largely on the case of Re Markuson, 5 N. D. 180, 64 N. W. 939, the petitioner contends that the sentence had expired when the order of October 1, 1925, was made; that the judge of the county court was without jurisdiction to make the order; and that the petitioner is restrained without warrant or authority at law. There is no merit in the petitioner’s contention. The court below clearly had the power to suspend the sentence of the prisoner from the first of April to the first of October, 1925. Comp. Laws 1913, § 10,959. We are concerned solely with a question of power. If the sentence was suspended, the court below had the power to revoke the suspension and imprison the defendant, even after the period of the • sentence had expired. This is settled law in this jurisdiction. Re Hart, 29 N. D. 38, L.R.A.1915C, 1169, 149 N. W. 568, and Re Harris, 49 N. D. 7, 187 N. W. 140, are conclusive against the petitioner’s contention.

YYhen the case of Ee Markuson, principally relied on by the petitioner, was decided, there was no statute like § 10,959, supra, giving [391]*391tbe court tbe power to suspend sentences. This distinction was expressly pointed out in tbe Hart Case. Tbe law bas been changed in tbis regard, and tbe decision is, therefore, not applicable.

Tbe application is denied.

CHRISTIAN SON, Ch. J., and Nuessle, Burke, and Biedzell, JJ., concur.

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fToiiNsoN, J.

The petitioner pleaded guilty to tlie charge of maintaining a common nuisance and was, on April 1, 1925, sentenced by the county court of Wells county, to serve ninety days in jail, and to pay a fine of $200 and costs. As part of the sentence, the court said: “It is further the sentence of the court that you may be released from serving the jail sentence at the present time, but that you are to appear before this court August 1, 1925, for further orders.” After some; intermediate but immaterial proceedings, the judge, on October 1, 1925, directed the sheriff to take the petitioner into custody and imprison him in the county jail for a period of ninety days from and after October 1, 1925. The sheriff proceeded to execute the order and the petitioner applied for a writ of habeas corpus in the district court. The application having been denied, he comes to this court, asking that the writ issue.

Iielying largely on the case of Re Markuson, 5 N. D. 180, 64 N. W. 939, the petitioner contends that the sentence had expired when the order of October 1, 1925, was made; that the judge of the county court was without jurisdiction to make the order; and that the petitioner is restrained without warrant or authority at law. There is no merit in the petitioner’s contention. The court below clearly had the power to suspend the sentence of the prisoner from the first of April to the first of October, 1925. Comp. Laws 1913, § 10,959. We are concerned solely with a question of power. If the sentence was suspended, the court below had the power to revoke the suspension and imprison the defendant, even after the period of the • sentence had expired. This is settled law in this jurisdiction. Re Hart, 29 N. D. 38, L.R.A.1915C, 1169, 149 N. W. 568, and Re Harris, 49 N. D. 7, 187 N. W. 140, are conclusive against the petitioner’s contention.

YYhen the case of Ee Markuson, principally relied on by the petitioner, was decided, there was no statute like § 10,959, supra, giving [391]*391tbe court tbe power to suspend sentences. This distinction was expressly pointed out in tbe Hart Case. Tbe law bas been changed in tbis regard, and tbe decision is, therefore, not applicable.

Tbe application is denied.

CHRISTIAN SON, Ch. J., and Nuessle, Burke, and Biedzell, JJ., concur.

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206 N.W. 230, 53 N.D. 389, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-pfann-v-kunkel-nd-1925.

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