State v. Bongiorno

| N.J. | Dec 15, 1921

The opinion, of the court was delivered by

Gummere, Chief Justice.

The indictment in this case charges the plaintiffs in error with an assault with intent to cotamit a rape upon one Olive Boyd. The trial resulted in a verdict of guilty against each of them, and the court thereupon suspended sentence. The present writ is, sued out to test the validity of the conviction.

The prosecutor of the pleas contends that the writ is prematurely issued; that in a criminal case the sentence of the court is the final judgment; and that until it is pronounced there can he no review on error. On the other hand, counsel for plaintiffs, in error insists that the suspension of a sentence is a final determination of the case, and that by such action the court, in the absence of an enabling statute, lias exhausted its power with relation to the ease after the expiration of the term at which the cause was tried, this being the rule of the common law with relation to the pronouncing of sentence. State v. Gray, 37 N. J. L. 368.

If the question presented was one of first impression, we should hesitate to hold that the suspension of a sentence and the pronouncement of a sentence are in legal effect one and the same thing. But the matter is not an open one in tins court. In the case of State v. Addy, 43 N. J. L. 113, it is, declared that the practice of suspending sentence in criminal cases lias long been in vogue in this state, and it is intimated that where such a course has been pursued, it is in the power of the court at any time, upon motion- of either party, to bring the case forward and pass any lawful order or judgment thereon. Later, the question came before the court again in State v. Brewer, 59 Atl. Rep. 31, and we held that the suspension of a sentence was not a final determination of the ease and that a writ of error would not lie to review' a coni icfion in such a case until the sentence wras actually pronounced. These cases wre consider controlling upon us.

A very full and interesting discussion, of the whole matter will he found in the case of State v. Osborne. 79 N. J. Eq. 430, in an opinion delivered by Vice Chancellor Garrison, upon a hearing had upon a writ of habeas corpus. He thus expresses his conclusion: “In the State of Hew Jersey, if a defendant has pleaded molo contendere or guilty or has been convicted upon trial, the court has the power, if the defendant does not object thereto, and, therefore, is, assumed to assent thereto, to refrain from pronouncing a judgment or sentence, and may at a subsequent time hale the defendant before it and impose the punishment in the-same manner that it would have been justified in pronouncing it upon the very dajr when the case was first ripe for sentence.”

The writ of error will be dismissed.