149 N.Y.S. 406 | N.Y. Sup. Ct. | 1914
The defendant was indicted by the grand jury of Onondaga county on March 14, 1913, for the crime of keeping a dis
At the May Trial Term of the Supreme Court, held by the same justice who presided at the March term, the defendant was again indicted by the grand jury for a subsequent offense of keeping a disorderly house, and she was thereupon apprehended and brought before the court, who, after examining the last indictment thus found and reading the evidence produced, before the grand jury on which said indictment was presented, made an order revoking the order of March 27, 1913, so far as it directed a suspension of the imprisonment so imposed, and directed that said sentence of imprisonment' should be executed. ^
The defendant now asks a certificate of reasonable doubt under section 527 of the Code of Criminal Procedure, to the end that the execution of said judgment may be stayed pending an appeal. In disposing of the question thus presented I shall assume that an appeal is the proper remedy for defendant and that the validity of the latter order may be determined upon such appeal. There are respectable authorities to the effect that the remedy of the defendant is by appeal, and not by habeas corpus, and for the purpose of this hearing I shall hold that to be the law. People v. Kelly, 32 Hun, 536; People v. Schleth, 68 Misc. Rep. 307, 123 N. Y. Supp. 686.
But it is urged that the above cases all related to the postponement of sentence, while the case at bar was a postponement of the execution of a sentence after it had been passed. It is difficult to see any distinction between the two cases. If the court possesses inherent power to postpone the passing of sentence, why should it not. possess a like power to postpone execution of a sentence after it has been pronounced? As is said in People v. Fabian, 126 App. Div. 97, 111 N. Y. Supp. 140, the suspension of sentence in no way disturbs the finding, but merely postpones the imposition of punishment. Why may not the same result be accomplished by postponing execution?
This power of postponing the infliction of punishment, both before and after sentence, seems to have been -exercised in England from the earliest times. In the reign of Queen Elizabeth the question was submitted to the*Queen’s Bench whether the justices of assize could, after the session had adjourned, lawfully command the sheriff to respite the execution still longer, and by the opinion of all the justices the order for further respite was adjudged good enough, and they said that the custom of the realm had always been to that effect. 2 Dyer, 205.
Blackstone says:
“The only other remaining ways of avoiding the execution of the judgment are by a reprieve or pardon, whereof the former is temporary only and the latter permanent. A reprieve is the withdrawing of a sentence for a period of time, whereby the execution is suspended. This may be ex arbitrio judiéis, •either before or after judgment, as when the judge is not satisfied with the verdict, or the evidence is suspicious, etc., or any favorable circumstances appear in the criminal’s character, in order to give room to apply to the crown for either an absolute or conditional pardon. These arbitrary reprieves may be granted or taken off by the justices of jail delivery, although the session is finished and the commission expired. But this is rather by common usage than by strict right.” 4 Bl. Com. 394.
Lord Hale says in his Pleas of the Crown:
“Although the judge by whom judgment is given ought to be very cautious in granting a reprieve of one condemned for treason, yet he may upon due circumstances do it as well in case of treason as felony. And this reprieve he may grant, and after he hath granted it may command execution after the session and adjournment of the commission.” 1 Hale's P. C. 368.
So, also, it is said in 2 Hawkins’ P. C. c. 51, § 8, that the power of staying the execution of a sentence is inherent in all courts which are .invested with authority to award execution, and that the judge continues to have this power after their commission is determined. See, also, to same effect, 1 Chitty Cr. Law, 758.
It is quite true that the authorities cited all speak of crimes which were punishable with death; but this, I think, can largely be accounted for by the fact that at the time Blackstone wrote a large majority of the ordinary crimes were punishable capitally. There were over 160 offenses, some of them of a minor type, such as simple larceny,
Our Supreme Court succeeds to all the powers which were possessed by the old Court of King’s Bench, and is therefore invested with all the rights and prerogatives that were exercised by that court. Kanouse v. Martin, 3 Sandf. 653, 657. And as the question was settled by the Court of Appea-ls in People v. Court of Sessions, above cited, that our courts possessed an inherent power to suspend the passing of a sentence, which power was derived from tfte custom of the realm, it follows f.or a like reason that they possess the power to suspend the execution of a sentence already passed.
The only question which seems to have been raised in England in regard to this power related to the exercise of the same after the adjournment of the term at which sentence was pronounced, and by a court composed of other judges than the ones pronouncing sentence, under which circumstances Blackstone says the power is rather by common usage than strict right. No such question can arise under our laws, as the constitution of our criminal courts is entirely different from those in the mother country. In England, at least at the time referred to in the authorities cited, the Court of Oyer and Terminer was held by special commission- and when the commission expired the court ceased to exist; whereas in our state the Constitution of 1821 provided for - the organization of such courts, which by act of 1823 (Laws 1823, c. 182, p. 211, § 9) were authorized to sit without any other commission. - The effect was to make the Court of Oyer and Terminer under our laws a continuous court, even though held by different judges. Its successive sessions were merely terms of the same, and not distinct tribunals, as held in England. Appo v. People, 20 N. Y. 531; People v. Naughton, 7 Abb. Prac. (N. S.) 422, 423; Anonymous v. Anonymous, 10 How. Prac. 353; Matter of Seventh Ave., 29 How. Prac. 180; Tracy v. Talmadge, 1 Abb. Prac. 460. Under the Constitution the Supreme Court now succeeds to all the powers of the old Court of Oyer and Terminer, and hence is invested with all the authority which that court possessed both by statute and common law. Const, art.' 6, § 6.
Coming, now, to the provisions of our statute law upon this subject, we find there was no enactment until the year 1893, when the Legislature by chapter 279 of the Laws of that year, amended section 12 of the Penal Code by providing that courts might in their discretion suspend sentence during good behavior in certain cases. This provision is now incorporated into section 2188 of the Penal Law, and,
It was said by the chancellor in the case of Meriam v. Harsen, 2 Barb. Ch. 270, that custom and usage are to be considered in construing statutes, and when long continued and hitherto unquestioned have great force. Again, in the case of People v. Quigg, 59 N. Y. at pages 86 and 87, Allen, J., says, where a statute has received a practical interpretation for many years, it should not be departed from to give it a more restricted interpretation, where such action would seriously affect the administration of the criminal law, even if there might have been reason for some doubt at first as to the meaning and intent of the Legislature.
It is a well-recognized rule of statutory construction that a long-continued course of action by public officers under a statute is entitled to great weight in its construction and should not lightly be departed from. McKeen v. Delaney, 5 Cranch, 22, 3 L. Ed. 25; Power v. Village of Athens, 26 Hun, 282, 287; Fort v. Burch, 6 Barb. 60, 73; Matter of Wash. St. Asylum & Parle R. R., 115 N. Y. 442, 447, 22 N. E. 356. General usage, long continued and unquestioned among public officers, in matters pertaining to the discharge of their duties, is of great force, and the practical construction thus given has much of the weight of a judicial decision. Easton v. Pickersgill, 55 N. Y. 310; People v. Dayton, 55 N. Y. 367, 378.
An examination of concurrent legislative enactments must also lead to the same conclusion. It will be observed that the only direct statutory authority to suspend sentence is contained in section 2188 of the Penal Law now under consideration. Yet the Legislature by chapter 372, Laws 1901, amended section 487 of the Code of Criminal Procedure, by providing that in certain cases where the court has suspended sentence, or after imposing sentence has suspended the execution thereof, the defendant should be placed in the hands of a probation officer. Also section 483 of the Code of Criminal Procedure, as amended by Laws 1905, c. 656, provides that after a plea or verdict of guilty the court, upon suspending sentence, may place defendant on probation, and if the judgment is to pay a fine the court,
While it is not contended that the defendant’s case was disposed of under the above sections, they are important as legislative declarations that the court has power under the statutes to suspend the execution of a sentence, as well as to suspend the passing of the same.
The only effect of the certificate asked would be to stay the execution of the judgment pending the appeal, and as I entertain no doubt of the power of the court to do what was done, and as the defendant’s plea of guilty yet remains unpunished, it seems to me that it would be an unwarrantable interference with the due course of justice to stay the enforcement of the penalty which the defendant upon her own confession deserves to have inflicted upon her.
The application for a certificate of reasonable doubt is denied.