State v. Talberth , 109 Me. 575 ( 1912 )

Scire Facias upon a recognizance given by the defendants under a sentence for illegal keeping of intoxicating liquors imposed upon the defendant Talberth by the Superior Court for Kennebec County at the January term, 1911. The sentence was in the following form: “Fine of $100 and costs taxed at $40, and thirty days in jail unless bail is given to keep out of business, etc.” At the same term the other defendants Murray and Rosen appeared and became “sureties in $500 conditioned that said Henry Talberth shall violate none of the provisions of the prohibitory liquor laws in the State of Maine for the term of two years from this date.”

The defendants contend that the procedure in taking this recognizance was unauthorized, and the recognizance itself void.

Precisely the same question has been decided by this court in the case of State v. Sturgis et als., very recently announced. In that case a sentence was imposed similar to that in the case at bar, and in an action of scire facias judgment was ordered for the defendants.

It was there held that “When the court has pronounced the sentence of the law against one convicted of a criminal offence, it then has no power (unless so authorized by statute) to make any order, the effect of which would be to indefinitely suspend the execution of that sentence, or to .nullify ¡it, upon the happening of a contingency or the performance of some condition by the defendant at his option, that any such order is void, and any bond or recognizance given in pursuance of such order is void.”

Joseph Williamson, County Attorney, for plaintiff. P. W. Clem, for defendants.

The opinion in that case thoroughly discusses the question at issue, and is decisive of the case at bar. Judgment for the defendants.