Neal v. StateNeal v. State
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- Before:
- Fish
On the 8th day of March, 1897, in the superior court of Gordon county, the plaintiff in error was found guilty of the offense of adultery and fornication. On the same day, the court sentenced him as follows: “Whereupon it is considered, sentenced, and adjudged by the court, that J. M. Neal do pay within three days a fine of three hundred dollars and all costs of this prosecution, and work in the chain-gang six months, and then be discharged; or, in default of such payment, that said defendant do work in a chain-gang on the public works or on such other works as the county authorities may employ the chain-gang, for and during the full term of twelve months, and then be discharged; and it is further ordered that this sentence begin and be counted from the time of the reception of said defendant in the chain-gang under this sentence and judgment. The defendant may be discharged at any time on the payment of said fine and costs. Sentence of six months suspended until further order of the court.” The bill of exceptions states that the verdict was a consent verdict, and that the defendant paid the fine and cost and was discharged. On March 12, 1898, at the February term of the court, the following order was passed by the judge: “Whereas, at the February term, 1897, of this court, J. M. Neal plead guilty to the offense of adultery and fornication, and was sentenced by the court to pay a fine of three hundred dollars and all cost and to work in the chain-gang for and during the term of six months, and the said sentence of six months was suspended till the further order of the court; it is therefore, upon sufficient cause being shown to the court, ordered that the sheriff of said county and his lawful deputies arrest said J. M. Neal, and that six months sentence in the chain-gang be enforced.” To this order Neal excepted, because it was “allowed and issued without notice to’ him, and is not based upon any rule or proceeding, issued or instituted by the court, calling upon defendant to show cause why such order should not be passed.”
Upon the question whether a court, after a conviction, can indefinitely suspend the imposition of a sentence, the authorities are in conflict. In People v. Blackburn, 6 Utah, 347, United States v. Wilson, 46 Fed. Rep. 748, and People v. Morrisette, 20 How. Pr. 118, this question was squarely presented, and, in each case, decided in the negative, upon the ground *513that the authority to relieve a person convicted of a criminal offense is not given to the courts, but belongs to the pardoning power; but in the Utah case a mandamus to compel sentence was denied on the ground that the judge, in his discretion, had evidently intended to impose the minimum punishment, which was merely nominal, and that the purely perfunctory duty and useless expense of formally imposing sentence would not be compelled by mandamus. In People v. Mueller, (Ill.) 4 Crim. L. Mag. 725, People v. Monroe County Court, 141 N. Y. 288, and People v. Webster, 36 N. Y. Supp. 745, the same question was decided in the affirmative. In New York there was a special statute authorizing the criminal court to exercise this power, but it was held that, independently of the statute, it existed at common law, and that it did not encroach upon the constitutional powers of the executive to grant reprieves and pardons; and such is the effect of the ruling in the Illinois case, though in that case the court held that the minimum sentence allowable was practically nothing, and said: “The difference between a suspension of sentence and any punishment I should impose, on the theory of guilt, is such an incalculable minimum as to defy statement.” In Com. v. Dowdican’s Bail, 115 Mass. 133, where the right of the court to postpone sentence is fully recognized, Gray, J. said: “It has long been a common practice in this Commonwealth, after verdict of guilty in a criminal case, when the court is satisfied that, by reason of extenuating circumstances, or of the pendency of a question of law in a like case before a higher court, or other sufficient cause, public justice does not require an immediate sentence, to order, with the consent of the defendant and the attorney for the Commonwealth, and upon such terms as the court in its discretion may impose, that the indictment be laid on file; and this practice has been recognized by statute ”; citing the statutes. In North Carolina the right of a trial court to make an order suspending sentence, upon the payment of the costs, is recognized. In State v. Crook, 115 N. C. 763, the court says: “ The practice of making an order, where defendants are convicted or submit to a criminal charge, that the judgment be suspended upon the payment of the costs, is one that seems to be somewhat peculiar *514to our own courts.” State v. Addy, 43 N. J. L. R. 113, was on an indictment for maintaining a nuisance, and while announcing that “The practice of suspending sentence after conviction of crime is, under some circumstances, justifiable,” decided that there was in fact no suspension of sentence, but that the order of the lower court, though appearing, in form, to be a suspension upon condition of payment of costs, was, in legal effect, an order to abate the nuisance and pay the costs. The decision in Weaver v. People, 33 Mich. 296, seems to approve the doctrine that a court may suspend sentence in a criminal case. In a subsequent case (People v. Riley, 53 Mich. 262) the same court appears to have been equally divided as to such power. Champlin, J., said: “ I do not think it is competent for a circuit judge or other judicial officer to suspend indefinitely the sentence which the law makes it his duty to impose upon a person duly convicted, or who may plead guilty in his court. The effect of a suspension of sentence operates as a quasi-pardon. . . . The pardoning power under our constitution is reposed in the governor, and not in the judges.”
In a still later case, People v. Brown, 54 Mich. 15, although the question was not strictly before the court, Chief Justice Cooley, delivering the opinion, in commenting upon a petition to the judge of the lower court to suspend sentence, said: “ They [the petitioners] formally request the judge himself, a high State official, and the chief conservator of law and public order in that part of the State, to grasp at power not confided to him and usurp authority.” And, again, he said: “ This judge would be usurping the functions of the executive were he to assume to give immunity from punishment. No doubt judges have done this sometimes, under pressure of such influence as appears here; but this is no reason for asking a repetition of the wrong. It is rather a reason for being especially careful and particular not to invite it, lest by and by it come to be understood that the power to pardon, instead of being limited to one tribunal, is confided to many.” We think that the opinion expressed by Chief Justice Cooley, and entertained by the courts that have decided this question in the negative, is the correct one. The power to indefinitely postpone the punishment prescribed by *515the law, whether exercised by suspending the imposition, or by suspending the execution, of a sentence, is the power to perpetually prevent punishment, a power which, under such provisions as are found in the constitution of this State, does not exist in the courts. The authorities draw a clear distinction between the suspension of a sentence and the suspension of the enforcement of a sentence; and however they may differ as to the right of a court to indefinitely postpone its judgment in a criminal case, it is well established that it can not, after the judgment is rendered, indefinitely postpone its execution. In the present case, it is to be presumed that the judge, in imposing the sentence, exercised the discretion conferred upon him by the law, as to the character and extent of the punishment, with a due regard to the circumstances of the case and the demands of justice. This being so, the sentence imposed by the court is to be taken as the one necessary for the due enforcement of the law and the vindication of justice. Therefore, the power to indefinitely suspend its execution, either in whole or in part, would be the power to prevent the enforcement of the law and to defeat the demands of justice. It is not apparent from the record why the court ordered the sentence of six months imprisonment in the chain-gang to be suspended until the further order of the court; probably the judge had in view the reformation of the defendant. But there is no provision whatever in the laws of this State for setting at liberty a convicted criminal and hanging over his head a threatened sentence, or the threatened enforcement of an imposed sentence, for the purpose of constraining him to refrain from further violations of the criminal statutes of the State. Of course, we are not to be understood as holding that a court may not temporarily postpone the execution of its sentence in a criminal case, pending proceedings for the purpose of obtaining a new trial or a review of the judgment. All the authorities agree that there may be a suspension for such purposes. The sentence imposed by the court below was not lawfully qualified by the addition thereto of the words, “sentence of six months suspended until further order of the court.” Such words in such a sentence are of no legal force, and consequently should be ignored and the sentence executed just as if they did not appear therein.
*516
To the same effect is State v. Cockerham, 2 Ired. 204, “where a defendant, who had been convicted of an assault, was sentenced to be imprisoned for íavo calendar months ‘from and *518after the first of November next ’; and did not go into prison according to the sentence, and at a subsequent term of the court it was directed that the. sentence for two months imprisonment should be immediately executed.” The Supreme Court of North Carolina held in that case that the court below had power to make such order. Gaston, J., delivering the opinion, said: “The time at which a sentence in a criminal case shall be carried into execution forms no part of the judgment of the court. The judgment is the penalty of the law, as declared by the court; while the direction, with respect to the time of carrying it into effect, is in the nature of an award of execution. In this case the judgment was that the defendant he imprisoned two calendar months; and the words, which follow in the record, ‘from and after the first of November next,’ direct the executing of the judgment.” In Hollon v. Hopkins, 21 Kan. 638, which was a proceeding in habeas corpus, the petitioner had been sentenced to State prison for three years, from a designated date. On the day after the sentence was imposed he made his escape from the custody of the sheriff, and was not recaptured until more than three years had elapsed from the time fixed in the judgment for the beginning of his imprisonment in the penitentiary. He insisted that the sentence had expired by its own limitation; but the Supreme Court, in a well-considered opinion, held otherwise. The court said: “ The only way of satisfying a judgment judicially is by fulfilling its requirements. Of course, if Hollon had died or been pardoned, the sentence would be at an end. But as these things have not happened, and as the sentence has not been disturbed by any judicial decision or determination, there is no way of satisfying its requirements, or of exhausting its force, except service by Hollon of the required time in the penitentiary. It has often happened that a judgment sentencing a person to be executed capitally on some particular day has not been fulfilled on that day. A reprieve has been granted, an escape effected, some unforeseen event preventing it has occurred, or the officers from some cause have failed to perform their duty, and the convict has, for the time being, escaped punishment. But in no case, so far as we are informed, has it been held that the convict was *519thereby freed from all punishment, or that he could not be executed on some subsequent day. See the following authorities: Ex parte Nixon, 2 Rich. (N. S.) 4, 6, and cases there cited; Ex parte Howard, 17 N. H. 545; State v. Oscar, 13 La. Ann. 297; Lowenburg v. People, 27 N. Y. 337; Rex v. Harris, 1 Ld. Raym. 482. If a fine should not be paid at the time ordered, it could certainly be afterwards collected. The time fixed for executing a sentence, or for the commencement of its execution, is not one of its essential elements, and, strictly speaking, is not a part of the sentence at all. See cases above cited, and State v. Cockerham, 2 Ired. 204; Ex parte Bell, 56 Miss. 282, and Dolan’s case, 101 Mass. 219. The essential portion of a sentence is the punishment, including the hind of punishment and the amount thereof, without reference to the time when it is to be inflicted.” In Dolan’s case, cited above, by the Kansas court, it was held that: “The sentence of a convict to imprisonment for a term expressed only by designating the length of time is to be satisfied only by his actual imprisonment for that length of time, unless remitted by legal authority; and if a sentence is limited to take effect upon the expiration of a previous sentence, its period will not begin to run until the first sentence has so been fully performed or legally discharged.” We are clearly of opinion that the contention of the plaintiff in error, that he has, in legal contemplation, served out his sentence of six months imprisonment in the chain-gang, is unsound, and that, with or without the order of the court of which he complains, it was the duty of the proper officers to see that such sentence was duly enforced.
Judgment affirmed.
All the Justices concurring.