In re Hart for a Writ of Habeas Corpus

149 N.W. 568, 29 N.D. 38, 1914 N.D. LEXIS 6

Opinions

Beuce, J.

(after stating tbe facts as above). Tbe question to be resolved in this case is whether, after an order suspending a jail sentence on which no commitment bas been issued, and six months after tbe period of that sentence bas expired, tbe court which imposed tbe sentence and suspended tbe same may revoke tbe order, and order tbe commitment of tbe defendant, and require her to serve out tbe original jail sentence.

Tbe statute under which tbe sentence was suspended is chapter 136 of tbe Laws of 1913, and reads as follows: “Section 1. Court may suspend or modify sentence, when. In all prosecutions for misdemeanors, where tbe defendant bas been found guilty, and where tbe court or magistrate bas power to sentence sucb defendant to tbe county jail, and it appears that the defendant has never before been imprisoned for crime, either in this state or elsewhere (hut detention in an institution for juvenile delinquents shall not be considered imprisonment), and where it shall appear to the satisfaction of the court or magistrate that the character of the defendant and circumstances of the case are such that such defendant is not likely again to engage in an offensive course of conduct, and where it appears that the public welfare does not demand or require that the defendant shall suffer the penalty imposed by the law, said court or magistrate may suspend the execution of the sentence or may modify or alter the sentence imposed in such manner as to the court or magistrate, in view of all the circumstances, seems just and right.”

We are of the opinion that the court had jurisdiction to revoke this order. There can be no doubt that the power “to remit fines and forfeitures, to grant commutations and pardons after convictions, for all offenses except treason and cases of impeachment,” was by § 76 (art. 3) of the Constitution vestéd solely and exclusively in the govern- or; that § 76, that is to say — article 3 of the Amendments — took this exclusive power from the governor and vested it in the board of pardons, of which the governor is a member, and that the sole and exclusive power in such matters now rests in that board. Re Webb, 89 Wis. 354, 27 L.R.A. 356, 46 Am. St. Rep. 846, 62 N. W. 177, 9 Am. Crim. Rep. 702; Snodgrass v. State, — Tex. Crim. Rep. —, 41 L.R.A.(N.S.) 1144, 150 S. W. 162. We realize, of course, that there are some authorities which seem to hold that, prior to the- American Revolution, the English courts exercised a co-ordinate power in such matters, and which seem to argue for a like power in the American courts. If the premise were true, it can, on the ground of analogy, have no application in America, as, prior to the English Revolution and the establishment of the so-called parliamentary idea, the theory, though occasionally com-batted, was consistently adhered to, that the power which was possessed by the courts flowed from the King, that all agencies of government derived their power from him, and that these powers were exercised in accordance with his wish and will, and that when the exercise of power or authority was sanctioned by him it was deemed to have the approval of the sovereign power. Even after the English Revolution, and the establishment of the parliamentary idea, it has been “the King in Par liament” wbo bas governed trials. There are not in England, in fact, and never have been, three distinct agencies of government, wholly independent of each other, with their powers and duties defined by the written law of the land, as is the case in America. See Snodgrass v. State, supra; Jenks, Short History of English Law, p. 187. The act of the judge, therefore, was to a large extent that of the sovereign.

Even if this were not the case, however, the premise is itself entirely false from a historical standpoint. Prior to the American Kevolution the English courts never, as a matter of fact, exercised, or presumed to exercise, the powers which are sought to be conferred by the statute in question, and at the time of the English Kevolution, in 1688, and, long prior to the American Kevolution and to the adoption of the American Constitutions, both state and national, had ceased to exercise the powers on the analogy of which the premise and the argument is based. To quote from the opinion in the case of Snodgrass v. State, supra: “In the early days of England a person upon trial as to his guilt or innocence was not permitted to introduce any witnesses to prove himself innocent of an offense charged against him, nor in mitigation of the punishment. The Crown introduced its evidence to prove his guilt, and, if that testimony showed his guilt to the satisfaction of the jury, they so found. If the court had a doubt of his guilt from the testimony, it could not grant a new trial on that ground, and no appeal was then permitted on' this ground. Under this condition the plea of benefit of clergy arose. It was first claimed by officials of the church alone, who claimed the right to be tried in • the ecclesiastical court. This plea was then permitted to all persons eligible to clerk or other position in the church, — that is, all men who could write, — and finally broadened to apply to all persons charged with crime. Not being permitted to offer testimony showing his innocence on the trial, nor offer testimony in mitigation of the punishment, after being found guilty by verdict, when granted the benefit of clergy, persons adjudged guilty of crime were first permitted in the ecclesiastical court to expurgate themselves, or prove their innocence and offer evidence in mitigation. Later the courts that tried the cases after verdict but before assessment of the punishment by sentence, would permit a defendant to introduce testimony in mitigation of the punishment to be assessed by the sentence or judgment of the court; and under this system there grew up the custom of suspending the sentence until the evidence was heard under this plea, so that the court might have the benefit of it in arriving at the punishment he would assess. Upon hearing this testimony the court frequently refused to inflict the death penalty, which was. virtually the penalty for all felonies, and would only assess a penalty of burning in the hand to mark the man; later, burning in the face; and, still later, sentencing the person adjudged guilty, to transportation to America or some other' point beyond the seas, and other penalties. From this power of the courts of England, claimed and exercised in an early day, must we look to any inherent power in a court to ameliorate or relieve any person of punishment adjudged guilty of an offense. In Chitty’s Grim. Law, Vol. 1, p. 624, the rule at that time is said to have been: ‘By the common law . . . the prisoner was not even permitted to call witnesses. . . . But the jury were to decide on his guilt or innocence according to their judgment upon the evidence offered in support of the prosecution. And, though . . . this latter practice of rejecting evidence for the prisoner was abolished about the time of Queen Mary, yet the witnesses could not be sworn on behalf of the prisoner, but were merely examined without any particular obligation, and therefore obtained but little credit with the jury.’ In his work he recites that .Queen Mary in appointing Sir Richard Morgan Chief Justice of the common pleas enjoined him ‘that notwithstanding the old error [of the old law], which did not admit any witnesses to speak, or any other matter to be heard, in favor of the adversary, her Majesty being a party, her Highness’s pleasure was that whosoever could be brought in favor of the subject should be heard.’ Mr Blackstone in his commentaries says that, shortly after the Revolution of 1688, among the chief alterations of the law was the ‘regulation of trials by jury, and the admitting of witnesses for prisoners under oath.’ Other learned commentators and writers of that period could be cited as showing that the ‘plea of benefit of clergy,’ or suspending sentence, was the outgrowth Df that condition, when during the trial not only was his mouth closed, but the mouths of all persons who would testify in his favor were also closed, and this plea or suspension of sentence, or reprieve, as it was called in that day and time, was but a way of permitting those who would testify in his favor to be heard in mitigation, of the punishment to be assessed, although in the common pleas court on this hearing they were not allowed to dispute the verdict of guilt which had been found by the jury, but the testimony was received alone to aid the judge in passing sentence after the verdict of guilt, and in mitigation of the punishment. But in the beginning and for a long time this plea was not allowed in cases except where the penalty was death, and was never applied to petit theft or misdemeanors. This can have no application to our jurisprudence, for the jury in their verdict fix the punishment, as well as pass upon the guilt or innocence of an accused person. After it became the law in England that witnesses were permitted to testify on oath in behalf of a defendant on trial of his guilt or innocence, this plea and custom rapidly waned, and by statute it was provided it could not be pleaded in many cases’, and finally in 1827 it was wholly abolished, and has not been the rule in that country since that date. Bishop, Grim. Law, § 937. Yet we find some trying to work out a theory whereby our courts would inherit that power from the jurisprudence of. England, although it was taken away from the courts of England nearly a century ago, and arose under conditions wholly at variance with our system of jurisprudence.” See also State v. Voss, 80 Iowa, 467, 8 L.R.A. 767, 45 N. W. 898.

That the order of the trial court suspending sentence in the case at bar would, if construed as petitioner desires it, constitute an invasion of the province of the board of pardons, there can, indeed, be but little question. Ex parte Clendenning, 1 Okla. Crim. Rep. 227, 19 L.R.A.(N.S.) 1041, 97 Pac. 650; Snodgrass v. State, — Tex. Crim. Rep. —, 41 L.E.A.(N.S.) 1144, 150 S. W. 162; Re Webb, 89 Wis. 354, 27 L.R.A. 356, 46 Am. St. Rep. 846, 62 N. W. 177, 9 Am. Crim. Rep. 702; State v. Abbott, 87 S. C. 466, 33 L.R.A.(N.S.) 112, 70 S. E. 6, Ann. Gas. 1912B, 1189. It is to be remembered that the Constitution vests in the board the power both to commute and to pardon. We have no doubt that, following the analogy of the English courts, and as a power which is inherent in the court itself, and certainly under the sanction of the statute, the trial judge can suspend the enforcement of a sentence for a reasonable time in order to allow an appeal to the executive clemency. Beyond this, however, the courts cannot go. The case at bar, in fact, is none other than one in which the court has, under the sanction of the statute, allowed the defendant that opportunity; and although the time that has elapsed between the rendition of the judg- meat and the rearrest has been longer than the original sentence, the defendant cannot complain, as the original order was legal, and the failure to sooner seek for the clemency of the board of pardons is due to the delay not of the court, but of the defendant herself. Miller v. Evans, 115 Iowa, 101, 56 L.R.A. 101, 91 Am. St. Rep. 143, 88 N. W. 198; Re Schantz, 26 N. D. 380, 144 N. W. 445; Fuller v. State, — Miss. —, 39 L.R.A.(N.S.) 242, 57 So. 6.

We are not unmindful of the case of Re Markuson, 5 N. D. 180, 64 N. W. 939, and that in it we said: .“We know of no authority which will permit a trial court to postpone from time to time the date at which imprisonment shall go into effect after a valid judgment has been entered, declaring that the imprisonment shall begin at a definite date which is stated in the judgment. The time at which a sentence of imprisonment begins and ends is a matter of the greatest importance, and is so considered by all the authorities. . . . Under § 21, supra, the judgment may be withheld for thirty days upon the terms stated in the statute, and to facilitate a review in the supreme court, but we find m> authority anywhere under which the time of taking effect of a judgment of imprisonment as' originally pronounced may by orders of the trial court be,postponed from time to time for any purpose or under any circumstance.” That ease, however, was handed down in 1895, and long prior to the enactment of the statute which is now before us, which authorizes the suspension of sentences, and which must, if possible, be upheld and be given a construction which will be in accordance with the provisions of the Constitution:

To construe the statute as- granting the power to the trial court to commute a sentence or to pardon the offense would render the statute unconstitutional. To hold that the suspension is indefinite, and only for a reasonable time, and for the purpose of affording the prisoner, if he desires, an opportunity to ■ apply for executive clemency, would render it valid. We so construe it. We hold, indeed, that the statute justifies just such a procedure as was suggested in the Texas court of criminal appeals in Snodgrass v. State, supra. In that case, the court, though' holding a statute to be unconstitutional which sought to confer upon the courts the power “to suspend judgment on conviction during the good behavior, and ultimately to annul the judgment,” expressly said: “A law can be drawn so that if on the trial it appears that it is tbe first offense, and tbe evidence convinces tbe judge tbat tbe best interests of society,'of tbe individual, and of tbe state would be served if tbe band of tbe law was stayed and tbe person adjudged guilty be given a cbance to reform, be may recommend to tbe governor a conditional pardon, and we are sure that in every deserving case the recommendation would he complied with by the governor. Tbe people bad tbe confidence in tbe governor to place tbis power in bis bands, and we, too,, have tbe same confidence. Tbe law could require tbat be have tbe court stenographer make a copy of the testimony beard, and require tbe judge to forward it to tbe governor, with bis recommendation, and provide tbat tbe prisoner be not conveyed to tbe penitentiary until tbe governor-bad acted on tbe recommendation. Thus tbe end sought may be reached in a way not violative of our Constitution, and all tbe good features in tbe law be retained.”

Tbe suspension in tbe case at bar is, in effect, nothing more or less than a recommendation to tbe board of pardons, and tbe giving to tbe defendant an opportunity to obtain clemency from that board. Tbe order was made under tbe authority of tbe statute, and therefore does not come within tbe condemnation of tbe case of Re Markuson, 5 N. D. 180, 64 N. W. 939. If tbe defendant has neglected to take advantage of tbe opportunity offered, she has herself only to blame, and cannot complain if tbe order is afterwards revoked.

Tbe writ will be quashed.