Shondell v. Bradley, Supt.

On August 7, 1930, a petition for a writ of habeas corpus was filed in the court of common pleas of Lucas county in which the discharge of Robert Shondell from custody was prayed for. Demurrer to the petition was sustained, and, the petitioner not desiring to plead further, final judgment was entered. Thereupon the plaintiff in error, Robert Shondell, brought this proceeding in error against the defendant in error, Fred Bradley.

The petition alleges that Robert Shondell is imprisoned in the Toledo Workhouse, and restrained of his liberty by Fred Bradley, superintendent of the workhouse, without any legal authority, under a commitment from the court of common pleas of Henry county, Ohio; that on or about October 23, 1929, an indictment was returned against the said Robert Shondell, for assault and battery, in the common pleas court of Henry county, Ohio; that at the September, 1929, term of said court, to wit, on October 29, 1929, a plea of guilty was entered by the said Robert Shondell to said indictment, and thereupon, on said October 29, 1929, said court of common pleas of Henry county, Ohio, adjudged that said Robert Shondell be fined the sum of $200, and also committed to the Toledo Workhouse for a period of six months, but on condition that said defendant should pay said fine of $200 within twenty-four hours, and absent himself from the corporate limits of the village of Napoleon, Ohio, for a period of five years from said date, the execution of the sentence to the workhouse was suspended; that said suspension was not at the request of said Robert Shondell; that thereupon said Robert Shondell paid said fine of $200 and was "enlarged" by said court without bond or other condition; that there was not at said time any legal proceedings pending or contemplated by said Robert Shondell to reverse or revise the judgment of said court, and that said sentence was not suspended to enable such legal proceedings to be taken; that said suspension was indefinite in its terms and imposed by the court solely for the purpose of keeping said Robert Shondell without the corporate limits of the Village of Napoleon, Ohio, for said period of five years; and that, thereafter, at the April, 1930, term of said court, to wit, on July 29, 1930, said court made an order setting aside said suspension of sentence and ordered said Robert Shondell committed on the sentence so imposed on October 29, 1929.

It has been held in this state that the trial court has no inherent power to suspend the execution of sentence after conviction in a criminal case except to stay sentence for a reasonable time to permit review on error. Madjorous v. State,113 Ohio St. 427, 149 N.E. 393.

Sections 13711 to 13714, inclusive, General Code, provided for suspending a sentence and placing the person sentenced on probation in misdemeanors, and for the revocation and termination of the order of probation. These sections were construed in the case of In re Nunley,102 Ohio St. 332, 131 N.E. 495. These sections, however, were repealed in 1929 (113 Ohio Laws, 123, 215).

Sections 2210, 2211, 2213 and 2214, General Code, provided for probation after sentence in felony cases. These sections were repealed in 1925 (111 Ohio Laws, 423, 429).

The statutes in force at the time of the indictment and sentence of the plaintiff in error provided for probation before sentence. Section 13452-1 et seq., General Code. At the time of his indictment and sentence there was no statute in this state which provided for the suspension of sentence after imposition, except for purposes of review on error. Section 13453-1 et seq., General Code. As the court imposing sentence had no inherent power to suspend a sentence which had been imposed, and the statutes of Ohio in force at the time of indictment and sentence make no provision for suspension of sentence after imposition, except pending error proceedings, the order suspending sentence upon condition that he pay the fine within twenty-four hours and absent himself from the village of Napoleon for five years was absolutely void.

The sole question presented is whether the common pleas court of Henry county had power, after the period of sentence had elapsed, to set aside the suspension of sentence and carry the sentence as to imprisonment into execution. While there are decisions to the contrary, we think, that, according to the great weight of authority, a void order suspending execution of a sentence previously passed does not prevent the court from carrying the sentence into execution. State, ex rel. Tingstad, v.Starwich, 119 Wn. 561, 206 P. 29, 26 A.L.R., 393; Spencer v.State, 125 Tenn. 64, 140 S.W. 597, 38 L.R.A. (N.S.), 680; State v. Abbott, 87 S.C. 466, 70 S.E. 6, 33 L.R.A. (N.S.), 112, Ann. Cas., 1912B, 1189; Fuller v. State, 100 Miss. 811, 57 So. 806, 39 L.R.A. (N.S.), 242, Ann. Cas., 1914A, 98; In re Hinson,156 N.C. 250, 72 S.E. 310, 36 L.R.A. (N.S.), 352; Neal v. State,104 Ga. 509, 30 S.E. 858, 42 L.R.A., 190, 69 Am. St. Rep., 175;State, ex rel. Buckley, v. Drew, 75 N.H. 402, 74 A. 875; Egbert v. Tauer, Mayor, 191 Ind. 547, 132 N.E. 370, 134 N.E. 199; Exparte United States, 242 U.S. 27, 37 S. Ct., 72, 61 L. Ed., 129, L.R.A., 1917E, 1178, Ann. Cas., 1917B, 355; and Miller v. Evans,Sheriff, 115 Iowa 101, 88 N.W. 198, 56 L.R.A., 101, 91 Am. St. Rep., 143.

The authorities sustaining the contention of plaintiff in error are collected in 8 Ruling Case Law, 256.

In the case of Ex parte United States, supra, which was commented upon in Madjorous v. State, supra, the Supreme Court of the United States held the suspension of sentence ultra vires and void and issued a writ of mandamus requiring the trial judge to set aside an order suspending the execution of the sentence imposed. It is true that the court did not direct that sentence be carried into execution, but it is plain that the result was intended from the language of the court on the last two pages of the opinion.

We do not approve the decision in Ex parte Steinmetz, 35 Ohio App. 491, 172 N.E. 623.

For the reasons given the court below did not err in sustaining the demurrer. The judgment will therefore be affirmed.

Judgment affirmed.

LLOYD and RICHARDS, JJ., concur.