135 A. 530 | N.H. | 1926
Although in many jurisdictions the power of the court to suspend execution of sentence has been denied as an infringement on the pardoning power of the executive, that doctrine, has never prevailed in this state. State v. Drew,
The petitioner concedes that this is true, but contends that the order relating to the issuance of the mittimus constitutes a deputation of judicial authority, and is therefore void. He also claims that this question was not passed upon in State v. Drew, supra.
One of the specific grounds of complaint in State v. Drew was that the court had attempted to delegate judicial power to the county solicitor. 269 Briefs and Cases, 1, 14. This question was argued at length in the petitioner's brief, and the opinion holds that the court "had power to make the part of the order complained of." Any possible doubt, however, that the question was definitely decided in that case is resolved by an examination of the later case of State v. Drew,
Orders like that under discussion have been common in this state for many years, and have afforded a just and convenient method of administering the criminal law. They do not contemplate judicial action in the sense of a further hearing either on the part of the solicitor or the court. Enforcement of the sentence is merely postponed to become effective at the solicitor's request. Under such circumstances, calling for the mittimus would appear to be an exercise of administrative rather than judicial power. State v. Corron, 73, N.H. 434, 462.
But whether such authority, whatever its nature, can properly be conferred upon a county solicitor is a question of no practical consequence in the case at hand, nor does it matter if the present solicitor in exercising that authority acted virtually as a probation *461
officer. The petitioner was not entitled as of right to any indulgence whatever. The stay of sentence was a favor to him (Philpot v. State,
"It is necessary to remember that the defendant has been convicted; that the court has the power to inflict the full measure of punishment; that if a defendant, thus in peril of suffering the full penalty of the law, is not visited with it, many things may happen favorable to him; while nothing worse than his present plight can possibly happen. If a defendant thus circumstanced sees fit not to object, or to acquiesce, I do not see who else is concerned that can complain, nor how he can legitimately complain." State v. Osborne,
Similar views are expressed in the following cases: Fuller v. State,
Nor is any injustice likely to be done a respondent by suspending his sentence subject to enforcement by the solicitor, for the court can still deal with the situation if justice so demands. State v. Owen,
It is further suggested that in no event can the order in question be lawfully made in a case involving a violation of Laws 1917, c. 147, since section 26 of that act prescribes the express terms on which sentences may be suspended.
The palpable object of this section is to insure the prompt and vigorous enforcement of the prohibitory law. It does not purport to confer authority on the court, but rather to limit the full exercise of an authority already possessed. State v. Drew,
Suspension of sentences is not obligatory. The sentence in the present case was suspended either on the condition imposed, or not at all. To permit the condition, if illegal, to work an absolute and *462 unqualified suspension would be contrary to the provisions of the statute. Its illegality would nullify the stay of sentence, while the sentence itself would remain unimpaired, a legal basis for commitment. State v. Drew, supra.
Exception overruled.
All concurred.
