City of Hattiesburg v. Washington

Cook, J., delivered the opinion of the court. The appellee, Henry Washington, was convicted in the police court of the city of Hattiesburg* on a. charge of having intoxicating liquor1 in his possession, and sentenced to pay a fine of one hundred dollars, and to serve a sentence of thirty days in jail, and the minutes of the police court reciting this judgment were signed bjr the police justice. The appellee paid the fine of one hundred dollars, and afterwards he was placed in jail to serve the jail sentence of thirty days. He thereupon filed in the police court a petition averring -that the jail sentence imposed upon him by the police justice had in fact been suspended upon his good behavior; that pursuant to this sentence the city clerk wrote the minutes of the court and the judgment entries thereon, but in writing the judgment imposing; said sentence said clerk neglected and omitted to show in said judgment that the jail sentence had been suspended; that the police justice did not discover the error1 before he signed the said minutes, and as a consequence the judgment as it appeared on the minutes of the court did not express and impose the true and correct sentence imposed by the court, but that the sentence actually imposed by the police justice appears on the police court docket. The prayer of the petition was that the police justice enter an order correcting the said judgment so as to show that the jail sentence was suspended during* the good behavior of the defendant, as intended by the court, so as to really carry out the judgment and intention of the court in sentencing the defendant. [328] Upon the hearing- of this petition the police justice entered an order reciting that the docket of the police court shows that the defendant was fined one hundred dollars and sentenced to jail for thirty days, and that said jail sentence was in fact suspended during1 good behavior, and that the judgment as entered by the city clerk does not correctly pronounce and impose the true and correct sentence actually imposed by the police justice, and ordering' that the judgment as it appears on the minutes of the court be amended and corrected so as to show that the defendant was fined one hundred dollars and sentenced to jail for thirty days, and that said jail sentence was suspended during the good behavior of the defendant. After the entry of this order in the police court, the city jailer refused to recognize its validity and refused to release the appellee, and thereupon he filed his petition for a writ of habeas corpus, averring that the jail sentence imposed .against him by the police justice had been suspended during his good behavior, but that the city jailer refused to recogize the validity of this suspension of sentence, and that he was illegally confined in the city jail. The writ was issued and made returnable before the circuit judge of the Twelfth circuit court district, and upon the hearing thereof an order was entered discharging the petitioner, and from this order the city prosecuted this appeal. In the decision of this case it will be unnecessary to pass upon the validity of the order of the police justice ■ attempting to amend or correct the original judgment as it appears on the minutes of the court. Conceding that the original judgment was properly amended so as to show that the police justice undertook to suspend the jail sentence imposed on the defendant, still he was wholly without power to suspend the sentence or any part thereof, and that part of the judgment which directed that “the jail sentence be suspended during the good be [329] havior of the defendant” was void. In the case of Fuller v. State, 100 Miss. 811, 57 So. 806, 39 L. R, A. (N. S.) 242, Ann. Cas. 1914A, 98, this court held that— “The power to suspend the execution of a sentence during' good behavior has not been conferred upon any court in this state by the Constitution or statutes, and, such power not being- essential to the existence of the courts, they have no said inherent power.” After the decision in the Fuller case the legislature enacted chapter 207, Laws, of 1914 (section 1275, Hemingway’s Code), which provides that — .“The circuit courts, in misdemeanor cases, are hereby authorized to suspend a sentence, and to suspend the execution of a sentence, or any part thereof, on such terms as may be imposed by the judge of the court. ’ ’ But the legislature has not attempted to confer such power on a police justice or police court. The judgment of the court below will therefore be reversed, and the petition dismissed. Reversed, mid petition dismissed.