Summary
In Doyle, the defendant was convicted of petit larceny and the trial court sentenced him to a fine or imprisonment. Doyle, 85 N.H. at 402.
Summary of this case from State v. FletcherOpinion
Decided March 1, 1932.
A sentence is not invalid though suspended upon a condition which is unlawful. A justice of the peace has power to correct an error inadvertently made in his record of a sentence.
PETITION, for a writ of habeas corpus, alleging that the relator, Thomas Seymour (hereinafter called the plaintiff), was arraigned before a justice of the peace on a charge of petit larceny, pleaded guilty, and was sentenced "to pay costs of $10.70 or be confined at hard labor in the Manchester Jail for the term of six months, and stand committed until sentence is performed, suspended as long as he stays out of State;" that the plaintiff left the state, but subsequently returned, whereupon he was committed to the Manchester jail to serve the sentence imposed. The defendant is the jailer. The plaintiff contends that the condition on which his sentence was suspended was illegal and that the sentence is therefore void.
Transferred by Burque, J. without a ruling.
Doyle Doyle, for the plaintiff.
John L. Sullivan, solicitor, for the defendant.
It is unnecessary to determine the legality of the condition in question, since it is the rule in this jurisdiction that a sentence is not invalid even though the condition on which it is suspended may be unlawful. Couture v. Brown, 82 N.H. 459, 461, 462; State v. Drew, 75 N.H. 402.
The plaintiff also contends that since the sentence was in the alternative, he is entitled to a discharge on payment of the costs. In order to avoid further proceedings this question, though not transferred, has been considered.
The punishment for petit larceny is imprisonment for not more than six months or a fine of not more than fifty dollars. P. L., c. 389, s. 5. Costs are merely incidental to conviction and sentence, and are taxed as in civil cases. P. L., c. 370, s. 5. Apparently the use of the conjunction "or" instead of "and" by the trial justice was a mere advertence. If so, he has jurisdiction to correct the record to accord with the facts. P. L., c. 367, s. 12. See State v. Company, 84 N.H. 322, 323; State v. Agalos, 79 N.H. 241; State v. Weare, 38 N.H. 314.
Petition denied.
All concurred.