The Somerset reporter. [volume] (Skowhegan, Me.) 1868-1909, 1904-11-17
RescrIpt In futile Case


court deaied the petition of Warrcn fu'-
tie for discharge from custody, and Of.
dered that the prisoner be remaLdcd IL
the Gust dy of he sheriff, feseryirg 10
i petitioner the right oil exception. Tn
j il he habeas corpus case recent, heaff
at Bangor, and which has been reported
at some length ia the newspaper. Ju :
tice Emery rules that the withhold
Of the mttimus after sentence has beee
passed is Illegal aud violation Of fiji
c!al duty and that agreements TO viii
hold mtttimus go long as n conVict
does not again break the law Is also l.
legal and void.
The validity Of the sentence. howevef,
Justice Emery rules, Is not Effected l.
such agreements nor by Withholding tn
mittmus. The mittimus may be issueo
asses 1sFds and the respondent !swiu!!
held In custody thereon 10 execution IL
j the sentence when, as In this case, h
asseuted to the delay.
The rescript 10 full Is as follows:
In Re Warren futile, petitioner for dis.
charge on habeas corpus
Emery ]. have considered tie cOnten-
tons OF the petitioner and by request put
my views Of them in writing.
lind the following facts Nov. 70, tgoz
the petitioner vas arrested and brought be-
] fore the Skowhegan municipal court b. an
swer to a complaint for the unlawful sale #
intoxicating liquors. Before pleading to the
complaint, the petitioner, tn prosecuting
complainant and the Judge came t. an agree
ment by which the petitioner shouli plead
guilty and be sentenced to hne costs ami i'm
prsonment, but that no mittimus in execu-
ton Of the sentence should Issue until the
petitioner should again be guilty Of unlaw-
fully selling intoxicating liquors The petit
toner thereupon pleaded guilty, sentence Of
fine, costs and imprisonment was imposed. a
memorandum OF the agreement was noted on
the judges docket and the petitioner was re-
leased from arrest and allowed to 60 without
day, without payment Of tine and costs and
without imprisonment. No mittimus or other
precept in execution Of the sentence was
issued, or even prepared.
In October, 1904, nearly two years after
ward, the Judge, being Of the opinion that
the petitioner was again unlawfuly selling
intoxicating liquors but without giving him
any hearing on the question, made out a nit
timus on the old sentence of Nov. 20, 1902.
anu Gel'setea II 10 'ne Sheriii' who took the
| PetNlohei mo CUSTODY ana committed him
!" jan III execution Oh that sentence. he pc
"O'''i ''iete"Poi' suea OUT this VIII OF habeas
eoiPus "na asNS lof MS aiSCharge from that
'''P, 'Soi'ii'eh''
The petitioner contends: % that the
uose oi Tue hauhlGlPai court mad no author
lty to suspend the execution Of sentence
o"oe ''''Poseu' pul was required by law TO
,ssue Hl'1'llaus thereon al once or as soon as
ne reasonably couia' ~ mat IN the agree.
mem previous 10 MS Pieading guilty author
i1eu inc suspension oil the execution CT the
sentence inc mttlmus should not have been
iss"cu without giving nun nearing upon
'Le question whether ne had broken the
agreement On ms part ~ that, having dis
=" e. sie P''souet Hoi,' custody ana al
lo"eu MN 10 50 without day, the Judge, after
ie"soh@9ie TIME al ieast' lost jurisdiction
oVe' 'he Pet'uoher ana could not issue mltti-
nus against n'' ana 'ila' IN TINS case rea-
sonaole 'iIie hau loHB eiaPsed.
~ ~ III. AT inc S,6 outset mere should be noted
inc MARKED ullefehee between suspending
ol Po 5G' .ne sentence Rseli, and sus-
Penulns OF PoS'PohhR me execution OF the
sentence al'ef " mas 2eth awarded. The
sentencing Is Juo'eiai 9u'y. he execution
u inc sentence Is Ministerial duty. super
iol courts oi record alttr CONVICTION may,
WIN 'iie consent OIL inc state attorney and
VI VIC eohNl0'' suspend OF postpone sentence.
I'm v i,o".0"Hs pa'i' rs Mass 1855
IeoPlg V court "i sessions al y \. 2oo.
bu' wn men sentence mas been once imposed,
.ne Ju'Ielai junction Is al ehd unless newly
- P''Pe' '''"ss ioi IsNIe" "i
"'G ''s''e"' Ut sentence
:, '"0 '''ei' eo''''''''S 'ile CONVICT io
Tue CUSTODY % 'le proper court ollicer IN eA.
eeu'o'' anu III 'il'S 2ta'e the eierk ol inc
eouI'' "e'i,is 'l'''ls'eiiaiiy' ID urea py Inc
81" 'e' Ni''9u' "'H o'"C' Oi INC court 10
"'"Ne ou' anu "'H'ei 10 inc oiHget the proper
""''"n' Vi eAe0u'l'n N - en- 49, secs
10 anu -
io' INC eou'' 10 iHeei PoSe 10 suspend inc
execution ol sentence lluellhiteiy' OF upon
eon''"ons ho' 'eieNai' 10 teNle" oI Inc
Judgment "ou'u seen" 10 DC usu'Pa'l"n Oh
INC eqeeu'iFe power 10 patuou' OF tepfleYe'
o ,,,. commute sentences IN Ne' Weno 90
WIS 554' IeoPie v Drown 81 MICH IS.
IOWA " foss co. iowa 4o7' Neai v Geef-
ga (Oa'3 a. L. n, "A. 100 feoPie " bar.
,e' Lo@; Ill =o7' nc naINusoh y. ~ o.
~ w. N g939' feopie ': ~ Oh sessions l4i
M IN \ zoo EApar'e GORDON u - l
piacK 500. h0eI conVictioh ana sentence
elemehey Is inc sole junction OF the eAeea-
i've, EYen II the purpose De not 50 much 10
pardon as TO ensure the convict future good
conduct that purpose must be affected 10y the
executive winch alone has the power 10 fA
the terms and conditions Tor suspendlng 9,r
RENTING execution oi sentence. H. - CHI
i39, sec ct seq
Much less can an INFERIOR ",2Sls'Tate' sash