I dissent. It appears by undisputed evidence that the judgment entered by the justice on his docket was the identical judgment actually pronounced upon the plea of guilty. The delay in making the entry on the docket in no way prejudiced the prisoner and did not invalidate the judgment. 16 C.J. 358; Ex parte Dye,32 Mont. 132, 79 P. 689; State v. Parise, 117 Kan. 106,230 P. 304; Ex parte Glavich, 74 Cal. App. 144, 239 P. 707.
The justice's docket shows that "the court granted a stay of execution for ten days upon the defendant furnishing a bond signed by two good and sufficient sureties," and the bond itself recites that the defendant, "having been duly sentenced upon said complaint, and granted a stay of execution for ten days from the date hereof, is bonded in the sum of $75.00," and that the sureties undertake and promise that the defendant "will appear and pay the above mentioned sum of $75.00," etc. The record shows no order of discharge or release of the judgment or substitution of the bond therefor — nothing but a stay of 10 days on condition of furnishing a bond. The oral testimony of the justice that "he paid $25 and gave a bond for the other $50 to be paid in 30 days" cannot change the terms and purpose and legal effect of the bond, which was introduced in evidence and speaks for itself.
The principle decided in In re Flint, 25 Utah 338,71 P. 531, that "the court, by indefinitely suspending sentence, and permitting defendant to go on his own recognizance, loses jurisdiction of him, so that it cannot afterwards have him rearrested, and sentence him," has no application here. In the present case there was no suspension of sentence at *Page 138 all. Defendant was not kept in a state of suspense or uncertainty for an indefinite time. Sentence was pronounced on the same day the plea of guilty was entered, and a stay of execution for 10 days was granted upon condition that a bond be given. Ample authorities are quoted in the prevailing opinion to the effect that such a stay does not deprive the court of jurisdiction to enforce its judgment, even in cases where the judgment is for unqualified imprisonment, which this is not.
The judgment that the defendant pay a fine of $75 or serve 75 days in the city jail is not void for uncertainty. I think a judgment in those words is popularly understood to mean that the imprisonment is contingent upon nonpayment of the fine. Other courts have so interpreted similiar judgments, and upheld them as against attack by habeas corpus. Ex parte Riley, 142 Cal. 124,75 P. 665; Ex parte Robbins, 27 Cal. App. 677, 151 P. 14; Exparte Glavich, 196 Cal. 723, 239 P. 708.
Our own case of Rasmussen v. Zundel, 67 Utah 456,248 P. 135, dealt with a different situation, and is distinguishable from the present case. There the penalty for the statute violated was a fine not less than $200 or imprisonment not less than 90 days. The judgment held bad for uncertainty was that the defendant "either pay a fine of $200 or spend 90 days in the county jail." The court said:
"The judgment in this case was not in the alternative — that upon failure to pay the fine the appellant should be imprisoned at hard labor until such fine had been paid — as the court was authorized to impose by section 9450, Comp. Laws Utah 1917."
Section 9450, supra, prescribes that a judgment for a fine, or of a fine and costs, may also direct that defendant be imprisoned at hard labor until such fine, or such fine and costs, are paid, in the proportion of one day's imprisonment for every dollar of the fine and costs.
In the Rasmussen v. Zundel Case it was plain that the court did not intend to impose 90 days imprisonment as *Page 139 alternative upon the nonpayment of a $200 fine under section 9450, supra, because the proportion between the two was not the proportion authorized by the statute. In the present case, the relative amount of fine and term of imprisonment are such as to indicate the intention to impose imprisonment only to enforce payment of the fine in the proportion of one day's imprisonment for each dollar of the fine, and this view is confirmed by the commitment, which expressly orders the defendant imprisoned until he shall pay the fine not exceeding one day for each dollar of the fine.
"The courts will go to all reasonable lengths to support the judgments of inferior courts not of record" which do not conform to prescribed forms "when assailed on habeas corpus." Ex parteAdams, 170 Ala. 105, 54 So. 501; Church on Habeas Corpus, § 296.
Our own Criminal Code (Comp. Laws Utah 1917, § 9365) provides:
"Neither a departure from the form or mode prescribed by this code in respect to any pleading or proceeding nor any error or mistake therein shall render it invalid unless it shall have actually resulted in a miscarriage of justice."
The prisoner has not been prejudiced or harmed by any of the proceedings for which he now complains. The delay in entering the judgment on the justice's docket did not affect him at all. He knew what the judgment was when it was pronounced. He recognized it by paying a part of it, and recited the same correctly in his bond. The stay of execution was an act of leniency towards him, and as a matter of course granted upon his own application. Whatever uncertainty existed in the judgment was resolved in his favor; that is, the judgment at all times was interpreted as for a fine, with alternative imprisonment imposed in case the fine was not paid.
I think that sound legal principles, confirmed in judicial decisions, support the judgment and commitment under *Page 140 which the prisoner is held, and that the judgment of the district court should be affirmed, and the prisoner remanded to the custody of the city marshal, and required to pay the penalty for his admitted wrong.