State v. Owen , 80 N.H. 426 ( 1922 )

Chapter 99, of Laws 1919, under which the respondent was sentenced, was an act in amendment of c. 147, Laws 1917, of which ss. 25 and 26 provided: "Sect. 25. It shall be the duty of the court before whom an offense against any provision of this act is returned, upon having its attention called to the fact, and proof made, that the respondent has been previously convicted of a violation of this act, or amendments thereto, to quash the complaint, information or indictment, and cause a complaint or information to be made by the county solicitor for a second offense, and have the same served and returned and brought before said court, or before some other court having jurisdiction." "Sect. 26. Courts having jurisdiction over violations of this act may suspend any sentence imposed by them on complaint, information or indictment for a first offense, so long as the respondent refrains from violating any of the provisions of this act. Sentence imposed for second or any subsequent offenses shall not be suspended, but shall be enforced by the court without indulgence or delay."

The stay of sentence by the order of March 29 was not equivalent to a final judgment, nor to a nolle prosequi or discontinuance, but was a mere suspension of active proceedings which left it within the power of the court at any time to bring the case forward and enter such lawful order as justice might require. Sylvester v. State, 65 N.H. 193, 195. The order of March 31, that the mittimus issue was not a conviction for a criminal offense. It was but the determination upon competent evidence of the interlocutory question whether the judgment should be further postponed. Sylvester v. State, supra; Philpot v. State, 65 N.H. 250.

The respondent having been convicted of a second offense, the terms of s. 26 gave the court no option but to enforce the penalty imposed. The suspension of the fine and commitment having been ordered under a misapprehension of the facts, it was the duty of the court upon the discovery of the error to correct it. The order which gave the respondent an opportunity to retract his plea was sufficiently favorable to him.

It is suggested by respondent's counsel that the provisions of ss. 25, 26 constitute an encroachment upon the constitutional powers of the judiciary. No authorities are cited nor reasons advanced in support of the suggestion, and none occur to the court.

Exceptions overruled.

All concurred.