The Somerset reporter., 1905-04-06
FUTILE WINS CASE
A MUNICIPAL COURT MUST ISSUE
MlTTiMUS At ONCE-EXCEP-
TONS SUSTAINED.


November 70, l9o ,, the petitioner vas ar
rested and brought before the skowhegan
municipal eouft charged with the offence Of
the unlawful sale Of Intoxicating liquors. Be
tore pleading to the complaint the petitioner,
the prosecuting complainant and the Judge
came to am agreement by which the petition
er should plead guilty and be sentenced to
line, costs and Imprisonment but that no nit
| timus in execution of the sente &C should is
sue until the petitioner should again be gull
ty OF unlawully selling intoxicating liquors.
The petitioner thereupon pleaded guilty, SEN
tence OF tine, costs and Imprisonment was inn
posed, memorandum of the agreement was
noted on the judges docket, and the peti
toner was released from arrest and allowed
to go without day, without payment Of fine
and costs, and without Imprisonment. No
l.ittimus or other precept IN execution Of the
sentence was issued or ever prepared.
In October, 1904, nearly two years after
wards, the Judge, being of the opinion that
the petitioner was again unlawfully selling in
toxicating liquors, but without giving any
hearing on the question, made out a mittmus
on the old sentence Of November 70, 1902,
and delivered ii to the sheriff who took the
petitioner into custody and committed him
to Jail in execution OF that sentence. The
petitioner thereupon sued out tins writ OF
habeas corpus and asks for his discharge from
that Imprisonment.
For the purpose Of bringing the case be-
fore the law court, the sitting Justice, ruled,
as matter Of la@, that the petitioner was not
entitled to be discharged. The case is here
upon exception to that ruling
A discharge will not be granted for TECH
ncal or unimportant errors in the process or
proceedings; but ii will be granted where
the detention IS under process issued by
court or magistrate, without authority or in
excess OF its jurisdiction
The municipal court of Skowhegan has
regular terms for civil business but none for
criminal, c. ass, special laws of 1901. In the
class Of offences charged against the petition
er, that court has the same jurisdiction as
trial justices, and no more, in criminal cases
it is always open Upon criminal charge
within its jurisdiction, if upon trial the re-
spondent is found guilty, or if he plead gull
ty, it becomes the duty Of the judge at that
session to impose sentence. When that is
done, the cause is determined, the Judges
judicial duty is at am end, and nothing re-
mains but to carry the judgment into effect.
If to do this, a eommItm nj is necessary, he
should issue mittmus at or before the end
Of the session at which the conviction was
had, to convey the prisoner then present IN
custody to all The issuance Of mtumus
is ministerial and not judicial act, Sc
quence OF the sentence necessarily following
it, and not subject to control by magistrate,
except in case of appeal as hereinafter stated.
In courts OF general jurisdiction II IS issued
by the clerk, without action or direction by
the court, but a magistrate having no clerk
may do it personally.
There is no doubt that permanent court
general jurisdiction, having stated terms
for the trial OF criminal cases, may for good
cause, place an indictment on file, or con-
tinue the cast to subsequent term for sem
tence. In such case jurisdiction OF the per-
son and cause is detained. But after SEN
tence and the adjournment OF the term, or at
the end OF the session, if before magistrate.
all jurisdiction of the cases and the person
has ceased
We are not called upon to decide whether
the Skowhegan mu 9ieipal court or trial
Justice has authority after conviction to con-
tinue for sentence. 1t is very doubtful if
such authority exists HE statute in force
when futile was convicted, provided that if
the offence is within the jurisdiction Of the
magistrate, he shall try ii and award sentence
thereon" A continuance for sentence can
not be ior an indefinite term, but should be
to a subsequent term This municipal court
has not stated terms for criminal offences.
As to these ii IS a temporary court for each
case exercising limited jurisdiction by pre-
scribed methods. 1t has no jurisdiction sus-
pend and revive at It's will case before it
The statute allows an appeal from a iudg-
ment OF a magistrate or municipal court to be
taken within "a hours thereafter, II not TAX
en before the close of the session, the mtti-
mus should issue, and the convict be placed
in Jail; but in such case if an appeal is duly
taken within "a hours, the magistrate must
necessarily recall the mittmus to allow the
appeal to be perfected. 10 put this beyond
question and resolve all doubts, the legisla-
ture, c. III Of the laws OF 1905, now X. 5. c.
49, 5. II, provided that in all criminal cases
before 4 magistrate, upon conviction and SEN
tence, # an "appeal Is not taken before the
adjournment of the session Of court at which
such sentence Is imposed. mittimus shall is
sue and the respondent shall be committed
thereon, under such sentence Then fol
lows a provision that Il after conviction
an appeal is Gully claimed, the mttinus may
be superseded, and the appeal allowed and
perfected. 1his enactment crystalized into
statute the already existing law.
If after conviction and sentence any court,
whether Of general or limited jurisdiction,
permits the convict to 60 at large without
day, it can never thereafter issue a mittimus
for his commitment In such cast, having
completed its judicial functions it has yolun-
tariIy surrendered all further control over the
case and person.
We are not furnished with a copy OF the
mittimus in this case, but the ordinary mltti-
mus directs the officers to commit the con-
vict then in custody, 10 the Jail or prison, ac-
cOrding to the sentence. 1t contains no or
der to arrest, and does not authorize an arrest
of an at large, and not an escaped prisoner.
The sentence does take effect and is in force
the day it is pronounced, and if the magis
trate voluntarily discharges the convict from
that custody without day, as was done IN this
case, he cannot afterwards be taken in exc
cution, certainly not after the time named for
his imprisonment has elapsed.
The fact that the petitioner assented 10 the
, suspension OF the mittimus IS immaterial.
lie could not thereby change or enlarge the
jurisdiction or power Of the municipal court.
lIabeas corpus IS the proper remedy when
the process upon which the convict is held,
was issued by a court having no jurisdiction
Of the case or person at the time of It's issue.
The result IS, that the municipal court had
no legal right to issue the mittimus when II
did, and that the arrest and commitment un-
der it was illegal, and the petitioner is un-
lawfully restrained OF his liberty
t,y,,, -,