Frankey v. Patten, Sheriff , 75 Utah 231 ( 1929 )

I dissent from the order discharging the prisoner. The prisoner was accused of having whiskey in his possession, in violation of an ordinance of Salt Lake City. He was tried and convicted in the city court, and appealed to the district court of Salt Lake county, where he was again tried and convicted. The latter court sentenced him to imprisonment in the county jail for three months and fined him $299, and ordered the sentence of imprisonment to be suspended upon payment of the fine. The fine was not paid, and the prisoner was imprisoned by the sheriff of Salt Lake county in the county jail. By this proceeding he seeks release from custody.

The answer and return of the sheriff, which is not controverted, sets up the judgment and a commitment issued in pursuance thereof as his authority for detaining the prisoner. The legal warrant and authority for detaining the prisoner is questionable only with respect to the place in which he was ordered to be imprisoned. The city ordinance under which he was convicted provides, as punishment for its violation, a fine not exceeding $299 or imprisonment in the city jail not longer than six months, or both. Comp. Laws Utah 1917, § 587, provides:

"In all actions for the violation of any ordinance, it shall be sufficient if the complaint refer to the title and section of the ordinance under which such action is brought. Any person upon whom any fine or penalty shall be imposed, may, upon the order of the court before whom the conviction is had, be committed to the county jail or the city prison, or to such other place as may be provided by the city for the incarceration of offenders until such fine, penalty, and costs shall be fully paid."

There is no difference in legal quality or grade between a city jail and a county jail. Imprisonment in either signifies no more than imprisonment in the other. There is no such distinction between them as exists between a penitentiary and a county jail. I see no legal reason why the statute should not be given effect. Under its plain provisions, the court was authorized to commit the prisoner to the county jail for the violation of the ordinance in question. But, assuming that the court erroneously sentenced the prisoner to the county jail, when the judgment should have directed imprisonment in the city jail, shall the convict be freed? Modern judicial opinion is practically a unit to the contrary. In the interests of justice, and to prevent its defeat, it is the practice in such cases to hold the prisoner and either direct or give the trial court an opportunity to correct the sentence.

This rule and practice is supported by many cases. The The basis for it is ably set forth In re Bonner, 151 U.S. 242,14 S.Ct. 323, 38 L.E. 149. It was applied in People ex rel. v.Kelly, 97 N.Y. 212; Halderman's Case, 53 Pa. Super. R. 554; Commonwealth v. Ashe, 293 Pa. 18, 141 A. 723; In reCharles Harris, 68 Vt. 243, 35 A. 55; In re Lewis, 51 Mont. 539,154 P. 713; Ex parte Howard, 72 Kan. 273, 83 P. 1032;Johnson v. State, 81 Fla. 783, 89 So. 114; Hampton v.Orme, 92 Fla. 412, 109 So. 455; State ex rel. v. Reed,138 Minn. 465, 163 N.W. 984; Bryant v. United States, 214 F. 51 (C.C.A., 8th Ct.); In re Vitali, 153 Mich. 514,116 N.W. 1066, 126 Am. St. Rep. 535; Ex parte Lee, 177 Cal. 690,171 P. 958; Ex parte Colford, 68 Cal.App. 308, 229 P. 63; Exparte Nichols, 82 Cal.App. 73, 255 P. 244; Mahler v. Eby,264 U.S. 32, 44 S.Ct. 283, 68 L.Ed. 549. See, also, 29 C.J. 175.

In Ex parte Tani, 29 Nev. 385, 71 P. 137, 13 L.R.A. (N.S.) 518, the court, after an elaborate discussion of the subject and the review of many previous cases, concludes that habeas corpus will not lie to release from custody a prisoner who has in all respects been regularly convicted and sentenced, except that the designated place of imprisonment is not that specified by statute, since the sentence is not entirely void; but the erroneous part may be rejected as surplusage and the prisoner remanded to the place of imprisonment required by statute.

The petitioner in this proceeding was admitted to bail, the condition of which is that he will hold himself amenable to the orders of this court. To discharge him will exonerate his bail and afford him an opportunity to escape further proceedings against him in the district court. In this situation, and in view of the great weight of judicial authority against releasing him, I think that the prisoner's petition should be denied, and that he should be remanded to custody, to abide the further order of the court in which he was legally convicted. The power and jurisdiction of that court to correct the sentence, in my opinion, is unquestionable. If the sentence is not there corrected within a reasonable time, a different question may be presented.