129 Mo. App. 639 | Mo. Ct. App. | 1908
The defendants were proceeded against on an information by the prosecuting attorney of Jasper county for selling intoxicating liquors on Sunday and for keeping open his licensed dramshop on that day. At. the November term, 1906, they pleaded guilty. On the plea being entered the record recites that “thereupon by agreement, the assessing of punishment and sentence is deferred to some future time.” The defendants were permitted to go at large without bail. No further entry appears of record for that term after that just quoted. The regular February term passed with no mention of the case. At the June term, 1907, the record not showing the presence of defendants, the following appears: “The defendants in this cause having heretofore appeared on the 6th day of December, 1906, it being the 15th judicial day of the November term, 1906, of this court, and plead guilty to the crime of selling liquor on Sunday and keeping their dramshop open on said day, and by agreement assessing of punishment having been deferred to some future time, now at this day the court doth assess their punishment therefor at a fine of $100 each; and the court further orders that the license of the defendants as dramshop keepers be and the same is hereby revoked, and that said defendants be and they are hereby prohibited from obtaining a license as a drampshop keeper in Jasper county, Missouri, for a period of two years from the 6th day of December, 1906.” And judgment was entered accordingly.
The defendants contend that the court was without jurisdiction to assess the punishment and to give judgment thereon. The ground of the position is that the court having passed the case over indefinitely after the plea of guilty, without any legal cause therefor, lost its
*642 “Until the Legislature shall vest courts in this State with powers not now given them, it is their duty, in the trial of criminal cases, upon a conviction or plea of guilty to pronounce judgment at that time, unless, upon motion for a new trial, in arrest of judgment, or for other cause the case is continued for further adjudication and the defendant, by recognizance or being-held in custody, required to continue to answer the charge. And if they fail to perform that duty, but discharge the prisoner, or permit him to go indefinitely, their power and jurisdiction over him ceases, and a subsequent sentence is without judicial authority.”
In United State v. Wilson, 46 Fed. 748, it is said that “Courts have no power to suspend sentence except for short periods pending the determination of other motions or considerations arising in the cause after verdict, and when the court has by order indefinitely suspended sentence, it cannot thereafter, and especially at a subsequent term revoke such order, and proceed to judgment by sentencing the defendant.” To the same effect is the opinion of Chief Justice Cooley in People v. Brown, 54 Mich. 15; People v. Blackburn, 6 Utah 347; In re Markuson, 5 N. D. 180.
In Neal v. State, 104 Georgia 509, it was said that “The power to indefinitely postpone the punishment prescribed by the 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.”
In 1903 the question again came before the Supreme Court of Illinois in the case of People v. Barrett, 67 N. E. 23, where it is elaborately discussed. That court said: “There can be no doubt that a court has the right, in a criminal cause, to delay pronouncing judgment for a reasonable time, for the purpose of hearing and de
We are inclined to agree to the views expressed in that quotation. It seems to us that it is an exercise of the power of pardon to withhold the sentence which the law imposes. The court is but the instrument, the arm of the law. The only power, to indefinitely stay the force of that arm is lodged with another department of the government. If the power be granted, where is it to be limited? It is asserted to be a discretionary power. Therefore it would be in great part a power practically beyond control, and might be exercised in cases where the general good demanded the law’s enforcement. If a court refuses to render a judgment in a civil case it may be compelled to perform that duty, and we can think of no good reason why it should not be likewise compelled to pass a sentence in a criminal case.
r There are authorities, among them, People v. Court of Sessions, 141 N. Y. 288, which assert such power at common law, though the full force and necessity for that holding is much broken by the fact that there is a statute in that State permitting such suspension. The distinction there stated between a pardon and a suspension is well enough, but after reading it one is still impressed with the fact that to suspend a sentence is, for all practical purposes, to pardon.
The fact that postponing “to some future time” was done by agreement of the defendants and the State’s
We feel fortified in the position that the power, as exercised in this case, does not exist in this State, from the consideration that we have a statute regulating parole, which is in effect a suspension of punishment. [Art. 14, chap. 16, R. S. 1899.] But it cannot be exercised by the court or judge until there has been a judgment or sentence of punishment. That statute (section 2816) reads that “any person against whom a fine has been assessed or a jail sentence been imposed by said court, or any person actually confined in jail under a judgment of a justice of the peace,” may be paroled as therein provided. In the case under consideration these defendants, as already seen, have never had judgment pronounced, nor has there been any pretense of action under the parole statute.
We conclude that the defendants were sentenced without authority of the law, and hence reverse the judgment and discharge them.