Fuller v. State

Oct 15, 1911
Versions:57 So. 806
100 Miss. 811
Smith, J.,

delivered the opinion of the court.

Appellant suggests that we have confused the question of a court’s power to suspend the imposition of a sentence with the question of its power to suspend the execution of a sentence after it has been imposed. As the first question it not involved herein, we will pretermit any discussion thereof, and confine ourselves to the latter; that is, the power of a court to suspend the execution of a sentence after it has been imposed.

Power to suspend the execution of its sentence has not been conferred upon any court in this state by our Constitution or statutes, and consequently, if such power exists at all, it must be one of the inherent powers of courts, or be derived from the common law. The inherent powers of a court are such as result from the very nature of its organization, and are essential to its existence and protection, and to the due administration of justice. Watson v. Williams, 36 Miss. 331; In re Waugh, 32 Wash. 50, 72 Pac. 710; 8 Am. & Eng. Ency. Law, 28: 4 Words and Phrases, 3605. It cannot be said that power to suspend the execution of a sentence is essential to the existence or protection of a court, or that it is essential to the due administration of justice, and consequently it has no such inherent power.

At common law, while a judgment remained unreversed, there were only two methods by which its execution could he stayed or prevented: First, by a reprieve, which merely delayed the execution of the sentence; second, by a pardon, which operated as an absolute bar to its execution. The power to pardon was never claimed or exercised by the courts, and will not be further considered here. Eeprieves were of three kinds: First, ex mandatio regis; sepond, ex arbitrio judiáis; third, ex necessitate legis. The first and third kinds of reprieves have no relevancy here, and we may dismiss them from further consideration. Eeprieves ex arbitrio judicis, or discretionary reprieves, were granted by the courts only *818in exceptional cases, to prevent abuses of their process, and to prevent irreparable injustice from being done to defendants. Some of the circumstances under which this power was exercised were as follows: “Where the defendant pleads a pardon, which, though defective in point of form, sufficiently manifests the intention of the ■crown to remit the sentence, where it seems doubtful whether the offense is included in some general act of grace, or whether it amounts to so high a crime as that charged in the indictment. The judge sometimes also allows it before judgment, or at least intimates his intention to do so, as when he is not satisfied with the verdict, and entertains doubts as to the prisoner’s guilt, or when a doubt arises, if the crime be not within clergy, or when, from some favorable circumstances, he intends to recommend the prisoner to mercy.” 2 Hawkins, Pleas of the Crown, 657; 2 Hale, Pleas of the Crown, 412; 1 Chitty’s Crim. Law, 757; Archbold’s Crim. Plead. & Prac. 206; 4 Blackstone, 394. This right of the court did not rest on any express authority or recognized principle, but stood alone on ancient usage. 2 Dyer, 205.

In Bishop’s New Crim. Proced. (4th Ed.), section 1299, it is stated that “the law'of respite or reprieve appears to apply alone to capital cases.” In 1 Chitty’s Crim. Law, 577, and Sterling v. Drake, 29 Ohio St. 457, 23 Am. Rep. 762, the statement is positive that reprieves were granted only in capital cases. As all of the early cases which have come under our observation, upholding this power of the court, were cases wherein the death penalty was imposed, it may be that the law relative thereto applies only to capital cases. It is unnecessary, however, for us to so hold here, for the reason that the power to suspend the execution of a sentence was never exercised or claimed by the courts at common law, as we have heretofore stated, except when necessary to prevent an abuse, of their process, or to prevent irreparable injustice from being done a defendant.

*819It may be also, as some courts have held, that the difference between our present criminal procedure and that of the early English courts is such that it is no longer necessary or proper for the courts to grant reprieves; but it is unnecessary for us to express any opinion on this point, for the reason that the reprieve or suspension granted in the case at bar was not for the purpose of preventing an abuse of the court’s process, or to prevent any injustice from being done appellant, but simply that it might be held over him in terrorem, thereby forcing him to refrain from further acts of lawlessness and to become a more law-abiding citizen. 'Since the “great .end of punishment is not. the expiation or atonement of the offense committed, but the prevention of future offenses of the same .kind, ’ ’ it may he that courts ought to possess the power within certain limits to suspend the execution of a sentence during good behavior; but the question before us is not what power the courts ought to have, hut what their power in fact is- Among the cases upholding the foregoing views are Spencer v. State (Tenn.), 140 S. W. 597; State v. Abbott, 87 S. C. 466, 70 S. E. 6, 32 L. R. A. (N. S.) 112; In re Webb, 89 Wis. 354, 62 N. W. 177, 27 L. R. A. 356, 46 Am. St. Rep. 846; Tanner v. Wiggins, 54 Fla. 203, 45 South. 459, 14 Ann. Cas. 718.

We have examined all the cases called to our attention which are in real or apparent conflict with the views here expressed, and have re-examined those cited in support of our former opinion, and find that all of them are either not in point or were decided upon a misconception •of the inherent powers of a court, or of what the common law upon this point was: In State v. Crook, 115 N. C. 760, 20 S. E. 513, 29 L. R. A. 260, which was a case involving the power of the court to suspend the imposition of a sentence and not of the execution thereof, the -court, in upholding the power of the lower court so to •do, frankly stated that it could find no precedent to sup*820port its decision. We are therefore of the opinion that we erred in holding that the lower court had inherent power, or any power at all, to suspend the execution of a sentence during the good behavior of a defendant.

It does not follow from this, however, that appellant must now go unpunished. That portion of the judgment which directed “that the jail sentence be suspended during the good behavior of the defendant” was void, and the defendant could have been taken into custody immediately upon the rendition of the judgment. The postponement of his imprisonment was presumably with his consent, for it does not appear that he at any time requested, as he had the right to do, to be taken into custody, and consequently he, cannot now object to being called upon to serve it. “Concensus tollit errorum". Gibson v. State, 68 Miss. 241, 8 South. 329. It is immaterial that a longer period of time than that for which appellant was sentenced has elapsed since the sentence was imposed. While at large under this void order, to which he did not object, appellant was in the same situation that he would have been, had he simply escaped from custody. In such case the sentence is not satisfied until it has been actually served. Ex parte Bell, 56 Miss. 282; 1 Bishop’s Crim. Proced. (4th Ed.), 1384; Spencer v. State (Tenn.), 140 S. W. 597; State v. Abbott, 87 S. C. 466, 70 S. E. 6, 33 L. R. A. (N. S.) 112; Miller v. Evans, 115 Iowa, 101, 88 N. W. 198, 56 L. R. A. 101, 91 Am. St. Rep. 143; Neal v. State, 104 Ga. 509, 30 S. E. 858, 42 L. R. A. 190, 69 Am. St. Rep. 175; Tanner v. Wiggins, 54 Fla. 203, 45 South. 459, 14 Ann. Cas. 718.

We have carefully examined the cases cited in opposition to this view, and think they were erroneously decided. In our former opinion we held that the exercise by the courts of the power to suspend the execution of a sentence was not in conflict with that clause of our Constitution which gives to the governor the power “to grant reprieves and pardons”; but, since we have a15*821certained that the court below had no power to suspend the execution of appellant’s sentence, it now becomes unnecessary for us to express any opinion upon this point, and all that was said in our former opinion relative thereto is hereby withdrawn.

The suggestion of error is overruled.

Overruled.