Daily Kennebec journal. [microfilm reel] (Augusta, Me.) 1870-1975, 1904-08-06

| The practice of putting conyicts IN
| probation by placing indictments and
complaints on file. and thus Indefinitely
postPoning or suspending the sentence
when such course is suggested Nv
clemcncy towards the accused. and
| deemed consistent with the interests of
public justice, has undoubtedly IRE.
| vailed in all the courts Of this Stale
| and been uniformly recognized as ono
| Of the inherent powers of the court
which may be exercised within the
| limits of a reasonable discretion. with
out the aid of express legislation. IF
| must be conceded that this common
law power is asserted by writer's of
| acknowledged authority in criminal
| jurisprudence, sanctioned by uniform
practice in a great majority of the
states. and supported by numerous de-
oided cases. This. however. is said to
be n nero suspension of "active pro-
coedingS in the ease which leaves If
within the power of the Court at any
time to bring the case
forward ard pass any lawful order or
Judgment therein"
In the case at bar there appears to
he no record of any condition attached
either to the sentence imposed by the
Court. or to the service of the warrant
of commitment. When. therefore, a
legal sentence had been pronounced in
due form. and formal warrant issued
and delivered to the deputy sheriff. the
proceedings in court would seem to
have been closed and the authority of
the Judge exhausted, unless the
mttimus was recalled for the correc-
ton of errors or other legal purpose.
The mittimus was never recalled.
and tho matter appears to have been
fully committed to the hands of an
executive officer of the law and the
case passed out of the control of the
Court 1t was then the duty of the
officer to make prompt service of the
warrant according to it's terms.
Whether or not it is for the interest OF
public justice that such precept
should he served forthwith" or after
the lapse of several years or not al all. is
not question which the law entrusts
to the discretion of an executive officer
to determine. 1t is his duty to obey the
precept promptly and precisely.
Ia At tfoSCiS hii'tioSpuS Vase III w
consin, it was held that in contempla-
ton of law the term of Imprisonment
should be deemed to have commenced
when the sentence was imposed upon
the respondent, who was then in the
custody of the Court, and that he could
not lawfully be imprisoned after that
term expired. although in the mean
time he had been permitted to go at
! large.
But it may be said that the warrant
of commitment was issued CONDITIONAL
! ly, to be served only in the event that
the respondent should continue to re-
| side in the State. and that the matter
| thus remained under the control of the
| Court. But it has been seen in this
case that the records of the court make
no reference to any condition upon
when the mittimus is alleged to have
been issued. and the court would have
| no power to nullify the record of Il legal
sentence and 4 formal warrant of COM
mitment by oral instructions to the
| officer to disregard the commands of
rreccpt which he was allowed to retain.
Furthermore, il it be conceded that
a condition was legally attached to the
service of the mittimus, and that the
case remained under the control of the
court, it is clear that the petitioner was
justly entitled to be heard by the Court
upon the question whether he had viO-
lated the spirit of the condition upon
which he was permitted to go at large
before he should be imprisoned upon
the original sentence and warrant of
commitment. This was not a question
to be determined by an executive Off
Ger. but by the judge of the Court who
imposed the sentence. The petitioner,
therefore appears to be unlawfully re-
strained of his liberty and it is ordered
that he be discharged from his impris-
Onment.