Re Application of Matthews

McBEIDE, C. J. On July 10, 1923, Ealeigh Matthews was convicted, on his plea of guilty, of the crime of unlawfully possessing intoxicating liquor and judgment and sentence were pronounced upon him as follows: “The above named Eolly Matthews having been brought before me on a criminal charge of unlawfully possessing intoxicating liquor, and having pleaded guilty; “I therefore sentence said Eolly Matthews to pay a fine of $250, including costs; or in default thereof that he be confined in the County Jail for the period of 125 days; and I further sentence him to be confined in the County Jail for the period of thirty (30) days, but it is hereby ordered said jail sentence be and stand suspended during defendant’s good behavior.” The petitioner paid the fine and was not committed to jail. On September 19, 1923, on an affidavit that petitioner had been drunk and had used indecent language, the justice, without giving him an opportunity to be heard, ordered him to be committed to jail and because of this commitment and imprisonment, which, he claims to be unlawful, he sues out this writ of habeas corpus. The judgment of a justice of the peace imposing imprisonment in a criminal action must be [90] certain and not contingent or alternative. He has no power to pronounce a judgment and afterwards parole the offender; much less has he power, as in this instance, to suspend the operation of a judgment by making its operation depend upon some future event. The judgment was ineffectual as a parole sentence, and was void for uncertainty as to the imprisonment. It is to be remembered in this case that the suspension of the operation of the judgment was a part of the judgment itself, — not an attempted parole after judgment. In effect, the judgment adjudicates that if, the defendant behaves himself properly, the judgment shall be ineffectual, but if at any time during his life he shall misbehave or shall fail to come up to the court’s standard of good behavior he shall serve thirty days in jail. Such a sentence lacks all the elements of certainty and is absolutely void. The judgment in this case is separable, and the petitioner, having paid his fine, should be discharged from custody. The petition contains the usual charges of conspiracy among the public officials to deny him relief in the local courts, but these charges are unsupported by any reputable proof. The recital of the contents of the affidavit in the writ, which is merely following the usual form in such cases, by no means indicates that the court accepts all these statements as true; but such a recital is the common form in all writs of habeas corpus, quo tuarranto or injunction proceedings. The writ was issued upon matters appearing in the petition, borne out by the record submitted at the same time, and which are of such public and general importance as to authorize us to take immediate cognizance of them. Especially do we take cognizance of these matters, as it is apparent [91] that the remedy by review or appeal could not be prosecuted within such a time as to afford the petitioner adequate relief, even conceding, as we do, that officials in Jackson County would act in entire good faith; and in view of the fact that justices of the peace are exercising the power of parole frequently, no doubt in good faith, believing they have a right to do so, and are pursuing the equally unauthorized practice of suspending a sentence after it has been pronounced. We wish to impress upon the minds of magistrates that it is their duty, when a defendant is convicted of violation of the liquor laws, or of any other crime, immediately to pronounce a direct and certain sentence, such as they deem adequate to punish the offense committed and to prevent others of like nature; and, having done so, their duties are at an end, leaving the matter of mitigation of the punishment to the executive authority, where it properly belongs: In re Webb, 89 Wis. 354 (62 N. W. 177, 46 Am. St. Rep. 846, 27 L. R. A. 356). The petitioner is discharged. Petitioner Discharged. Footnotes [2] Power of court to suspend sentence or stay execution of sentence, see notes in 26 A. L. ¡R. 3'99; 33 L. R. A. (N. S-.) 112; 39 L. R. A. (N. S.) 242; L. R. A. 1915C, 1169; L. R. A. 1918'C, 561.