In Re Jennings

The petitioner was convicted of a violation of the prohibition laws in the probate court of Jerome county and the following judgment was rendered:

"It is therefore ordered by me that the defendant shall pay a fine of $200 together with the costs of this case in the amount of $5.40 and be committed to the county jail of Jerome County, Idaho, for a period of 90 days, said jail sentence to be suspended when the aforesaid fine and costs are paid.

"Provided, however, that the said suspension of jail sentence be in the nature of a parole to the sheriff of Jerome County, Idaho, and if the said sheriff shall, at any time, have reason to believe that the said defendant, H.C. Jennings, is violating the prohibition law, and so reports to this court, it shall be deemed a violation of this judgment and the said jail sentence shall immediately take effect."

This was dated April 21, 1927. The next day the court added the following to the docket under the head of "Note":

"April 22, 1927, the defendant, H.C. Jennings, is hereby paroled until November 1, 1927, upon the condition that he give a note for $205.40, being the amount of said fine and costs; the said note to be secured by a chattel mortgage on the crops growing or about to be grown on the lands farmed by the said H.C. Jennings.

"The receipt of said note and mortgage is hereby acknowledged.

"W.B. SUMMER, Probate Judge."

Evidently the note was not paid and on January 13, 1928, petitioner obtained a temporary restraining order enjoining the treasurer of Jerome county from enforcing the chattel mortgage. On the following day the judge of the probate court issued a commitment directing the sheriff to confine the petitioner in the county jail of Jerome county in accordance with the judgment quoted above, and at the same time issued a writ of execution against petitioner's property. Petitioner was taken into custody forthwith and has ever since been detained.

An application for a writ of habeas corpus was denied by the district court of Jerome county and this proceeding is an appeal from that order denying the writ.

It is urged that that order is not such a "final judgment" as may be appealed under C. S., sec. 7152. In Winnovich v. Emery,33 Utah, 345, 93 P. 988, 991, a well-considered case, this contention was urged and the court said:

"The test of finality for the purpose of an appeal, therefore, is not necessarily whether the whole matter involved in the action is concluded, but whether the particular proceeding or action is terminated by the judgment."

We conclude that this court has appellate jurisdiction inhabeas corpus proceedings brought originally in the district court. (Martin v. District Court, 37 Colo. 110, 119 Am. St. 262, 86 P. 82; Ex parte Petitt, 84 Kan. 637, 114 P. 1071;In re Hicks, 20 Mich. 129; State v. Superior Court, 99 Wash. 619,170 P. 130, L.R.A. 1918C, 921; see, also, 29 C. J. 183.) This, of course, does not conflict with nor deprive the court of its original jurisdiction granted by the constitution.

Appellant contends that the judgment of the probate court is void. Respondent concedes that that portion of the judgment wherein the court attempted to exercise the power of parole is an absolute nullity.

The court had complete jurisdiction to impose the fine and imprisonment and that part of the sentence was therefore valid. It is a general rule that where a sentence consists of a void portion and a valid portion, which are severable, the courts will give effect to the valid portion. (Ex parte Bottjer,45 Idaho 168, 260 P. 1095; Ex parte Erickson, 44 Idaho 713,260 P. 160; In the Matter of Setters, 23 Idaho 270, 128 P. 1111;In re Chase, 18 Idaho 561, 110 P. 1036.)

An order suspending sentence without authority, made part of a judgment or attached to it, is surplusage and will be disregarded. (Morgan v. Adams, 226 Fed. 719; State v. Drew,75 N.H. 402, 74 A. 875; State v. Abbott, 87 S.C. 466, Ann. Cas. 1912B, 1189, 70 S.E. 6, 33 L.R.A., N.S., 112; Reese v.Olsen, 44 Utah, 315, 139 P. 941.)

The remaining question is whether the probate judge had the power to require the execution of the original judgment, in so far as it was valid, long after the judgment was rendered and after the time when the term of imprisonment specified in the judgment had expired.

There is a conflict of authority but a consideration of the cases leads us to believe that by the great weight of authority, where the court makes an unauthorized order suspending the execution of the sentence imposed by the judgment, such order does not prevent the subsequent enforcement of the valid portion of the sentence at a later date.

Some of the courts which oppose this view take the position that the sentence begins to run as soon as it is imposed and ends when the time of imprisonment mentioned therein has expired. (Corporate Authorities of Scottsboro v. Johnston,121 Ala. 397, 25 So. 809; In re Markuson, 5 N.D. 180, 64 N.W. 939;In re Webb, 89 Wis. 354, 46 Am. St. 846, 62 N.W. 177, 27 L.R.A. 356.)

It is held by other courts that jurisdiction is lost where the prisoner is permitted to go free after sentence, and that thereafter the court has no power to issue a commitment. (United States v. Wilson, 46 Fed. 748; Tuttle v. Lang, 100 Me. 123,60 A. 892; Ex parte Clendenning, 22 Okl. 108, 132 Am. St. 628, 97 P. 650, 19 L.R.A., N.S., 1041.)

One of the best considered cases upholding the right of a court to issue a commitment on a judgment rendered some time before is State v. Abbott, supra. The facts in that case were very similar to those in the case at bar. Replying to the objections indicated above, urged by those courts opposing this view, the court said:

"The reasoning of the cases first cited we think sophistical because it rests upon the false assumption that a sentence necessarily begins to ran and to be satisfied the moment it is pronounced. The execution of a sentence may be postponed by appeal, by escape, and by other causes; but the time of delay in the execution is not counted as part of the time of imprisonment fixed by the sentence. No more can the delay due to the release of the convict under a void order of the court attempting to suspend the sentence be so counted. The sentence is satisfied, not by the lapse of time after it is pronounced, but by the actual suffering of the imprisonment imposed by it. The rule is that jurisdiction remains in a court to enforce its valid judgments according to law against those who are parties to them . . . . and therefore we think the reasoning in the second class of cases is unsound. This conclusion is supported by high authority," (citing cases).

The following cases support the above conclusion: Morgan v.Adams, supra; Ex parte Collins, 8 Cal. App. 367, 97 P. 188;Mann v. People, 16 Colo. App. 475, 66 P. 452; Daniel v.Persons, 137 Ga. 826, 74 S.E. 260; Egbert v. Taner,191 Ind. 547, 132 N.E. 370; Miller v. Evans, 115 Iowa, 101, 91 Am. St. 143, 88 N.W. 198, 56 L.R.A. 101; Fuller v. State, 100 Miss. 811, Ann. Cas. 1914A, 98, 57 So. 806, 39 L.R.A., N.S., 242;State v. Drew, supra; Ex parte Lujan, 18 N.M. 310,137 P. 587; State v. Cockerham, 24 N.C. 204.

In this state apparently the minority rule was first adopted. (In re Peterson, 19 Idaho 433, 113 P. 729, 33 L.R.A., N.S., 1067.) In the later case of State v. Ensign, 38 Idaho 539,223 P. 230, this position was modified. One Sharp had been convicted and sentenced and had served part of his sentence when the trial court made an order annulling the jail sentence and remitting the fine. On writ of review the court said:

"Since the order made by the court is absolutely void, under the weight of authority it must be revoked and the judgment theretofore entered enforced, even though the period of the sentence may have expired."

This holding, which, as has been indicated, is in line with the great weight of authority, is supported by sound principle. The essential portion of the sentence is the incarceration and the fine and the length and amount thereof. The time within which it is to be performed is secondary, and where the defendant acquiesces in any postponement of performance, as he plainly did in this case, he should not be permitted to complain of a delayed commitment. (Miller v. Evans, supra; Exparte Collins, supra.) A judgment can only be satisfied judicially by fulfilling its requirements. (Dolan's Case,101 Mass. 219; State v. Drew, supra.)

In the case of In re Grove, 43 Idaho 775, 254 P. 519, no judgment had been pronounced. Here a proper judgment and sentence had been pronounced, but had not been executed.

The petitioner having been lawfully committed under the commitment of January 14, 1928, his application for a writ ofhabeas corpus was properly denied. The order appealed from is affirmed.

Budge, Taylor and T. Bailey Lee, JJ., concur.