APPEAL from a judgment of the Superior Court of the County of Yavapai. Richard Lamson, Judge. Judgment affirmed.
Mr. John A. McGuire, for Appellant.
Mr. K. Berry Peterson, Attorney General, Mr. Riney B. Salmon, Assistant Attorney General, and Mr. W. E. Patterson, County Attorney, for the State.
[37 Ariz. 419] McALISTER, C. J.
On March 3, 1930, an information was filed against Henry Silver, appellant herein, charging him with selling a pint of intoxicating liquor to John Doe. He plead guilty the same day and the court immediately pronounced this sentence:
"That you be confined and imprisoned in the County Jail of Yavapai County, Arizona, for a period of two years, and that in addition thereto you be fined the sum of Three Hundred Dollars, and that in default of the payment of said fine in addition to the period of imprisonment hereinbefore imposed you be confined and imprisoned at the rate of One Dollar per day until said fine is satisfied. The term of your imprisonment shall begin with the 3rd day of March, 1930. . . . That the jail sentence herein imposed be suspended according to law for the time of your good behavior. G. C. Ruffner is hereby appointed probation officer and the time of your probation shall be for a period of two years from this date."
Pursuant to the order of suspension appellant was released from custody and subsequently paid $250 [37 Ariz. 420] of the fine, but on July 24th following the county attorney filed a motion praying that the court order him remanded to the custody of the sheriff for the purpose of serving the two-year jail sentence, the ground upon which such action was sought being that the order of suspension was void. Two days later and before any hearing was had thereon appellant filed a petition praying that the judgment and sentence be set aside and appellant permitted to withdraw his plea of guilty and enter one of not guilty, and if this prayer be denied that so much of the judgment as directs appellant's confinement in jail for two years be vacated and the same made to read that the imposition of confinement is suspended and appellant placed on probation.
A hearing on the motion and petition was had on August 8, 1930, and it appeared therefrom that appellant was arrested late in February, 1930, at which three pints of intoxicating liquor were found in his possession by the arresting officer; that he was placed in jail and remained there three or four days when he was taken before a justice of the peace; that before charges were preferred against him the sheriff told him he doubted if he had enough evidence to obtain his conviction for selling intoxicating liquor but that he knew appellant had been doing it, and if he wished to plead guilty to that he might do so, but that if he did not he (the sheriff) would turn him over to the federal authorities for prosecution; that if he plead guilty a fine and jail sentence would be imposed on him but the latter would be suspended during good behavior; that he had the right to employ an attorney if he wished to do so; that thereupon appellant told the sheriff he would plead guilty to selling intoxicating liquor.
Upon these facts appearing, the court denied the petition of appellant but made no ruling on the motion of the county attorney though the denial of the [37 Ariz. 421] former in effect granted the latter. The vacation and modification of the judgment were denied because the court felt that it was then without jurisdiction to make any order relative thereto, though it is clear that if it had thought otherwise it would have granted the relief asked for by the petitioner, for in ruling on the petition it made these remarks:
"I would be very glad to do that if I felt that I could in order to carry out the intention of the original sentence. . . . The sentence does read what I intended at the time, but since I have gone into the matter I consider that I had no right, I had no power. . . . I feel very strongly on these cases that it is a very unfortunate sentence because there was no question on the part of all concerned, but at the present time I feel that I have no such power."
The one error assigned is the ruling denying the petition to vacate the judgment and permitting the execution of the sentence, and in support of this general assignment two propositions are advanced. The first is that it was an abuse of discretion to refuse to vacate totally the judgment and sentence and permit the appellant to withdraw his plea of guilty and enter one of not guilty, because the plea was involuntary, conditional and obtained by duress and fraud, and to allow it to stand would be against public policy. The second is that it was error to refuse to set the jail sentence aside and thus permit it to be executed.
It should be stated before considering these two propositions that the alternative sentence of imprisonment directing that in default of the payment of the fine appellant be imprisoned at the rate of one dollar per day until satisfied was void, because it together with the imprisonment fixed by the court exceeded the maximum jail sentence of two years prescribed by the legislature for the offense of selling intoxicating liquor, Ex parte Morris,17 Ariz. 537, 155 P. 299, but it is separable from the rest and should be disregarded [37 Ariz. 422] or stricken since ...