People v. Boehm

176 A.D. 401, 35 N.Y. Crim. 386, 163 N.Y.S. 22, 1917 N.Y. App. Div. LEXIS 5103

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 16, 1917
• Status: Published

Opinions

Kruse, P. J.:

I find no authority in either the Code of Criminal Procedure or the Penal Law, or in any other statute, which authorizes a court to indefinitely suspend the execution of the sentence after it has been pronounced, in a case like this. The provisions of the Code of Criminal Procedure and the Penal Law relating to placing on probation a criminal have no application to this case. Concededly, the defendant was not put upon probation. It is said that courts have inherent power under the common law to suspend the execution of judgment after it has been pronounced. Even so (although the Federal Supreme Court has recently held to the contrary, Ex parte United States, 242 U. S. 27), the order should be upheld, because there is no limitation of time by statute within, which that may be done. If the suspension was illegal, there is all the more reason for setting it aside and enforcing the judgment.

In either view I think the order was proper. The order • revoking the suspension of execution of judgment and ordering its execution should be affirmed.

All concurred, except Foote and Lambert, JJ., who dissented in a memorandum by Lambert, J.