131 Va. 802 | Va. | 1921
delivered the opinion of the court.
John W. Richardson, who was prosecuted under the name of John Richardson, assigns error in the final judgment of the trial court committing him to jail for thirty days for a violation of the prohibition statute.
These facts appear: On November 10, 1919, the accused having pleaded guilty, the following order was entered:
“This day the Commonwealth by its attorney and the accused by his attorney, by and with the consent of the attorney for the Commonwealth and the' accused pleaded guilty to the indictment against him; whereupon the court imposed a fine of $50.00 and fixed the period of his confinement in this city jail at thirty days: But the court doth suspend said jail sentence, during good behavior of the accused, and upon the payment of said fine and the taxable costs of this prosecution, the accused is discharged from custody until the further order of this court.”
Thereafter, he was indicted in the Circuit Court of the county of Pulaski for unlawfully transporting ardent spirits, to which charge he also pleaded guilty on September 14, 1920, and a fine of $50 was imposed on him therefor. Following this second conviction, a rule was issued in the Corporation Court of the city of Radford on December 14,1921,
“This day came again the Commonwealth by its attorney, and the defendant John W. Richardson, by his attorney, and the court without passing upon the sufficiency of the evidence submitted by the Commonwealth in support of the rule and the motion for commitment thereunder; upon such evidence; and without passing upon the sufficiency of the answer of John W. Richardson to the rule, and without passing upon the demurrer to the evidence offered in support of the rule, which questions and motions were submitted to the Corporation Court of the city of Radford, Virginia, at its December, 1920, term; is of the opinion and doth decide that the court was in error in suspending the jail sentence imposed upon the defendant, John W. Richardson, by its order of November 10, 1919, and that the court was without jurisdiction or power to suspend said jail sentence fixed in said order of November 10, 1919, the court, therefore, doth now annul and set aside so much of .the order entered November 10, 1919, as suspended the jail sentence provided for in said order; and doth now order, direct and command the sergeant of the city of Rad-ford, Virginia, to take charge of the defendant, John W. Richardson, and commit him to the jail of the city of Rad-ford, Virginia, there to serve a period of thirty days, the time fixed and provided in the order of November 10 1919, to which ruling of the court the defendant excepts.”
To this order this writ of error was allowed.
It is observed that in the judgment of February 24, 1921, committing the accused to jail, the court bases its action upon the opinion that it was without jurisdiction or power to suspend the execution of the jail sentence imposed by the order of November 10, 1919, and for that reason only annulled and set aside the suspending order.
The question presented depends upon the proper construction of section 2 of the act approved March 16, 1918 (Laws 1918, Chap. 349), providing for probation and suspension of sentences in criminal and juvenile courts. This section reads thus:
“After a plea or a verdict of guilty in any court having jurisdiction to hear and determine the offense with which the prisoner at the bar is charged, if there be circumstances in mitigation of the offense, and if it appear compatible with the public interest, or in any case after a child has been declared delinquent or dependeht, the court may suspend the imposition or the execution of sentence, or commitment and may also place the defendant on probation under the supervision of a probation officer, during good behavior, for such time and under such conditions of probation as the court shall determine. The court may subsequently increase or decrease the probation period and may revoke or modify any condition of probation. While on probation the defendant may be required to pay in one or several sums a fine imposed at the time of being placed on probation, or may be required to make restitution or reparation to the aggrieved party or parties for actual damages or loss caused by the offense for which conviction was had, or may be required to provide for the support of his wife or others for whose support he may be legally responsible.
*808 “The court may revoke the suspension of sentence and cause the defendant to be arrested and brought before the court at any time within the probation period, or within the maximum period for which the defendant might originally have been sentenced to be imprisoned, whereupon, in case the imposition of sentence has been suspended, the court may pronounce whatever sentence might have been originally imposed; and in case the execution of the sentence has been suspended, the original sentence shall be in full force and effect, and the time of probation shall not be taken into account to diminish the original sentence. In the event that any person placed on probation shall leave the jurisdiction of the court without the consent of the judge, or having obtained leave to remove to another locality violates any of the terms of his probation, he may be apprehended and returned to said court and dealt with as provided above.”
In Ex parte United States, 242 U. S. 27, 37 Sup. Ct. 72, 61 L. Ed. 129, L. R. A. 1917E, 1178, it is held that in the absence of statutory authority, the Federal courts have no power to suspend the execution of sentences indefinitely, but the power of Congress to confer that authority by statute is expressly recognized.
In this State the matter is regulated by statute, and nothing has been suggested which leads us to doubt the constitutionality of such statutes. Code 1919, section 4925, expressly recognizes the power of the General Assembly to enact them in this language: “Except where authorized by statute, no court, judge or justice shall suspend the entry of execution or judgment in any criminal case.”
Possibly the idea that such statutes constitute an invasion of the pardoning power of the governor is based upon an erroneous view of the true effect of suspending execution of a sentence. By the very term used it is not a pardon, excuse, immunity, or relief, from the punishment, but a mere suspension, or postponement, of its execution.
It is also urged in this case that the commitment of the accused to jail in this proceeding is invalid because the maximum period for which he might originally have been
While the precise meaning of this clause is not perfectly apparent, its purpose to limit the period within which the suspension order can be revoked is manifest. It is clear that within such limited period the court is expressly authorized to revoke the suspension and impose the penalty,
The maximum period for which the accused could be imprisoned for this crime appears to be six months. In this case it appears that more than six months had elapsed after the original suspension of the sentence, November 10, 1919, and before the date of the issuance of the rule, December 14, 1920. As this maximum period had expired before the rule was issued, we are of opinion that the court exceeded its power in assuming further jurisdiction of the case. At any time within six months, under the statute, the court
If the court fails to prescribe the period of probation in the suspending order, then the statute operates, determines the period and limits the jurisdiction of the court to revoke the suspension to the maximum period for which the accused could originally have been imprisoned.
It follows, therefore, that we think the court erred in taking jurisdiction of this case after the expiration of the six months from the date when the sentence was suspended. The order will therefore be reversed, and the rule dismissed.
Reversed.