Appellant drew a check on a bank, in which he had an account, for $15 and gave it to his mother who presented it to Mr. Hubble who cashed it. When the check was presented to the bank by Mr. Hubble payment was refused because of insufficiency of funds in appellant's account. Thereafter Mr. Hubble called upon the mother of appellant to reimburse him for the amount of the check. It is fair to conclude from the record that due to impoverishment of the family the mother was not in a position to immediately take up the check. Some time thereafter Mr. Hubble signed the criminal complaint referred to in the majority opinion. Appellant was arrested, tried before the district court and jury, found guilty and was sentenced to serve six months in the county jail. Before the trial the check referred to was taken up and prior to the trial Mr. Hubble petitioned the court in writing to dismiss the charge which was refused. Appellant issued several other small checks and gave them to his mother and the same were cashed under similar or like circumstances as was the check cashed by Mr. Hubble. However no criminal charges were filed against appellant by other parties injured by reason of his drawing checks on the bank without funds. All of the checks so drawn by appellant were later taken up, some of them on the instalment plan. During the course of the trial the following proceedings occurred and the following questions were asked appellant's mother by the county prosecuting attorney. *Page 39
"Q. Did you receive other checks from your son and cash them?
"A. I did.
"Q. How many?
"A. I don't know.
"Q. Do you remember one at the Peoples Store?
"A. Yes.
"Q. Have you that check here?
"A. No, I haven't.
"Q. Do you know where the check is?
"A. No, I don't know, but I know it has been taken care of.
"Q. Did you see the check as late as yesterday?
"A. No.
"Q. Have you the Peoples Store check with you, Mr. Cordon?
"The COURT: I will grant an order directing the defense to produce it.
"Mr. JEFFERY: We had it down in court not later than two days ago.
"Mr. CORDON (Attorney for appellant): The defendant says he will try and get it, your Honor.
"The COURT: At the first recess. You may proceed."
Further on in the record the court inadvertently made the following remark:
"The COURT: Ordinarily we do not require the defendant to produce evidence against himself but in that particular case he was using that check in his behalf of a proceeding initiated by him in this case."
Just what effect these remarks of the court had upon the jury cannot be determined. It may well have been that in the absence of the remarks of the court the jury would have found appellant not guilty. However, it would hardly seem, in view of the remarks made by the court and the court's imperative order directing the defense to immediately produce the check afforded the appellant a fair and impartial trial. If the check was admissible in evidence the court required appellant to produce evidence against himself in violation of his constitutional rights. I merely call attention to this situation in view of what will be said hereafter.
Section 19-2721, I. C. A., provides: *Page 40
"The court may reverse, affirm, or modify the judgment or order appealed from, and may set aside, affirm or modify any or all of the proceedings subsequent to, or dependent upon, such judgment or order, and may, if proper, order a new trial."
Section 19-3301, I. C. A., provides as follows:
"When a defendant is held to answer on a charge of misdemeanor, for which the person injured by the act constituting the offense has a remedy by a civil action, the offense may be compromised as provided in the next section, . . . ."
Section 19-3302, I. C. A., is as follows:
"If the party injured appears before the court to which the depositions are required to be returned, at any time before trial, and acknowledges that he has received satisfaction for the injury, the court may, in its discretion, on payment of the costs incurred, order all proceedings to be stayed upon the prosecution, and the defendant to be discharged therefrom; . . . ."
In view of what has heretofore been said and that all of the checks had been paid and all parties had received satisfaction before the trial, including the one complaining witness who petitioned the court to dismiss the criminal proceedings, justice tempered with mercy would justify invoking the provisions of section 19-2721, I. C. A., as well as the amendment to section 19-4021, I. C. A. (chap. 60, 1937 Sess. Laws, p. 82), which is as follows:
"When the defendant pleads guilty, or is convicted either by the court or by a jury, the court must render judgment thereon of fine or imprisonment, or both, as the case may be; provided, however, it appearing to the court that it is a proper case, the court may, in its discretion, suspend the execution of judgment or withhold judgment on such terms and for such time as it may prescribe and in either event may put the defendant on probation."
It would seem to me that the judgment committing the appellant to the county jail for six months should be modified and that this is a proper ease calling into action the discretion of the trial court, and the judgment should be that appellant pay all the costs incurred and be placed on probation. Appellant, his wife and child were living at his mother's home *Page 41 at the time he issued the checks. It may be inferred that his financial circumstances were such that this was necessary. To confine him in the county jail for six months and thus deprive him of earning support for his wife and child would be to inflict an unnecessary hardship upon those dependent upon him. In State v. Neil, 13 Idaho 539, 554, 90 P. 860, 91 P. 318, the following language is used, which I now think applicable to the instant case:
"It is both the spirit and intention of our laws that sentence shall be imposed in criminal cases for the protection of society and the reformation of the culprit. As we view this whole case, two years' imprisonment of the defendant will be as much protection to society and do him as much good as would ten. Ten years would practically ruin him for life. He is a young man yet, and it is to be hoped that this experience will serve to reshape and reconstruct his views regarding his duties and obligations to those about him, and possibly inspire him with some higher and better notions. . . . . We have concluded to modify the sentence to the extent of reducing it to a term of two years in the state penitentiary."
The judgment when so modified should be affirmed.