Sylvester v. State

20 A. 954, 65 N.H. 193

• Court: Supreme Court of New Hampshire
• Decided: June 5, 1889
• Status: Published

Opinion

Dob, C. J.

“It has long been a common practice in this commonwealth, after verdict of guilty in a criminal case, 'when the court is satisfied that, by reason of extenuating circumstances, or of the pendency of a question of law in a like case before a higher court, or other sufficient cause, public justice does not require an immediate sentence, to order, with the consent of the defendant and of the attorney for the commonwealth, and upon such terms as the court in its discretion may impose, that the indictment be laid on file; and this practice has been recognized by statute. Sts. 1865, a. 223; 1869, c. 415, s. 60. Such an order is not equivalent to a final judgment, or to a nolle prosequi or discontinuance by which the case is put out of court, but is a mere suspending of active proceedings in the case, which dispenses with the necessity of entering formal continuances upon the dockets, and leaves it within the power of the court at any time, upon the motion of either party, to bring the case forward and pass any lawful order or judgment therein.” Com. v. Dowdican’s Bail, 115 Mass. 133, 136.

J udgment was rendered against Sylvester, in open court, when he was present, September 3, 1887, on his plea of guilty; and the enforcement of the judgment by mittimns was not a punishment for subsequent offences, or for breach of the condition on which execution was stayed. No appeal can be taken in a justice court, except from a judgment (Moses v. Julian, 45 N. H. 52, 60); and the order granting the motion for a mittimus was not a judgment, The police court was satisfied by the evidence that the respondent had sold liquor after September 3. But this conclusion was not a conviction of a criminal offence. It was a mere finding of a fact involved in the interlocutory question whether the execution of the judgment should be further postponed. On this question he was no more entitled to another complaint and warrant, another arrest, a formal summons, personal plea, appeal, or jury trial, than he would have been on a denial of his motion for a temporary stay of mittimus December 11. If the interlocutory motion for a mittimus was triable by any judicial tribunal, the trial and decision belonged to the jurisdiction in which the motion was made. He had an opportunity to be heard, and the evidence was competent in support of the motion. The validity of the first stay, ordered on the third of September, is as immaterial as the validity of the second, ordered on the eleventh of December. . If the first was illegal on either of the grounds suggested by the state, or on the ground that the assent of the attorney-general or solicitor was necessary, the judgment was not invalidated by the illegal delay in its enforcement. If the agreement and plea had been made under any misunderstanding that would entitle the respondent to a change of plea, his remedy would not be by appeal. Thompson v. Ela, 58 N. H. 490, 498.

Petition denied.

All concurred.