17 N.H. 545 | Superior Court of New Hampshire | 1845
It is contended in substance that the judgment of the court in this case can no longer be executed at the time prescribed; that the time of execution cannot be extended by reprieve, and that, the time having passed, there can be no execution of the sentence.
The first question raised is respecting the power to reprieve. There is no express provision authorizing a reprieve in our constitution or statutes. The power of pardon is vested by the constitution in the governor and
A power to reprieve is not necessarily included in the power to pardon. Courts cannot pardon. But it appears that a court may stay an execution, and might reprieve at common law. If any power of reprieve exists other than that vested in the court, it must be in the governor as chief executive magistrate, and is not included in the power of pardoning, which is to be exercised by the governor, with advice of the -council.
It appears that there are reprieves ex necessitate legis. These "are of such a character that the power cannot in all instances be exercised, and the reprieve granted by the court, which can act only when in session. The judge who presides has no power in vacation to exercise the authority of the court, and grant a reprieve.
But eases of insanity may occur after judgment, in vacation, and cases of pregnancy may appear afterwards. Neither of these may be good ground for pardon. The question comes to this, then, whether the administration of justice here is subject to the reproach that there is no powTer to stay execution of sentence in vacation, without a pardon.
We are of opinion that, there being a class of reprieves ex :necessitate legis, tbe povrer exists ex necessitate legis, and that that power is vested in the governor. That opinion we expressed in Prescott’s case, and the governor of that day, acting upon it, granted a reprieve. It is argued that
If this reprieve were held to be an unwarrantable exercise of power by the governor, because not within the limits of the power, the prisoner could not be discharged. We do not therefore determine whether there is any irregularity in the form and manner of the respite or reprieve in this case. It is not necessary that there should be any conflict between the executive and judicial departments. If the reprieve is regular, it postpones the time of execution according to its terms. If it is irregular, the court might treat it accordingly; but it is not necessary to determine that, for, if it were entirely without authority, the only effect -would be to require a new order for the execution of the sentence.
The judgment of the court consists of the sentence of death to be executed upon the prisoner. With it is an order designating the time when the sentence is to be carried into execution. The order is not, strictly speaking, a part of the judgment, although here usually entered with it. This is shown by the practice in some other. States, where judgment is pronounced by the court, but the warrant for execution issues afterwards from the executive.
There may be a failure to execute the order at the time prescribed, from various causes: Providential occurrences, riots, willful default of the sheriff. Neither of these can operate as a pardon, or give the prisoner a right to be discharged. The sentence still remains in force. If it has been stayed by a reprieve, it is to be executed at the end of the time specified in the reprieve. A reprieve does not revise the judgment, or destroy the sentence.
If from these or any other causes the time prescribed for execution has passed, the court must make a new order, if no other disposition has been m^e of the case.
It has been argued that there is no order to keep the prisoner .beyond the day appointed in the sentence; but there is no necessity that such an order in terms should exist. The prisoner is in custody under sentence of death, the sheriff holds a warrant for his execution; this is sufficient to authorize him to keep him.
Prisoner remanded,.
