Hoke, J.,
after stating the case: The power of a court having jurisdiction of a cause to suspend judgment temporarily, on conviction of a criminal, for- some special purpose or for some determinate and reasonable period of time, was recognized at common law, and ordinarily obtains at the present day in courts of general jurisdiction and holding terms at stated periods.
State v. Bennett,
20 N. C., 43-51;
State v. Crook,
115 N. C., 760;
Commonwealth v. Maloney,
145 Mass., 205;
State v. Addy,
43 N. J. Law, 113; 4th Blackstone, 394; Chitty’s Cr. Law, 75.
Wherever the power was exercised, however, in a former time, except for the purpose of allowing defendant to move for a new trial or take some other steps in the orderly procedure of the case, it seems only to have been done with a view to ameliorate the condition of the defendant, as by giving him time to show that he was entitled to the benefit of clergy, or that the rigors of the sentence had been modified by act of Parliament, or by affording him opportunity to apply for pardon. Thus, in the citation from Blackstone,
supra,
the author says: “A reprieve (1) (from
reprendre,
to take back) is the withdrawing of a sentence for an interval of time, whereby the execution is suspended. This may be, first,
ex arbitrio judicis,
(2) either before or after judgment, as where the judge is not satisfied with the verdict, or the evidence is suspicious, or the indictment is insufficient, or he is doubtful whether the offense be within clergy, or, sometimes, if
it 'be a small felony, or any favorable circumstance appear in tbe criminal’s character, in order to give room to apply to tbe crown for either an absolute or conditional pardon.”
And Cbitty lays down tbe same doctrine,- in language nearly identical, tbus: “But tbe more usual course is for a discretionary reprieve to proceed' from tbe judge bimself, wbo^, from bis acquaintance with all tbe circumstances of tbe trial, is most capable of judging when it is proper. Tbe power of granting tbis respite belongs, of common right, to every tribunal which is invested with authority to award execution (d). And tbis power exists even in case of high treason, though tbe judge should be very prudent in its exercise (e). But it is commonly granted, where tbe defendant pleads a pardon which, though defective in point of form, sufficiently manifests tbe intention of the crown to remit the sentence (f) ; where it seems doubtful whether tbe offense is not included in some general act of grace (g);,or whether it amounts to so high a crime as that charged in the indictment (h). The judge sometimes also allows it before judgment, or, at least, intimates his intention to do so, as when he is not satisfied with the' verdict and entertains doubts as to the prisoner’s guilt; or when a doubt arises, if the crime be not within clergy; or when, from some favorable circumstance, he intends to recommend the prisoner to mercy.”
And in the more recent applications of the principle the better-considered decisions are to the effect that the power indicated should only be upheld when sanctioned by usage, and where the consent of the defendant was expressly given or would be implied from the fact that its evident purpose was to save defendant from a more grievous penalty permitted or required by the law.
Commonwealth v. John Dondican’s Bail, 115
Mass., 136. In this State, as shown in
Crook’s case, supra,
the power to suspend judgment and later impose sentence has been somewhat extended in its scope, so as to allow a suspension of judgment on payment of costs, or other reasonable condition, or continuing the prayer for judgment from term to term to afford defendant opportunity to pay the cost or to make some compensation to the party injured, to be considered in the final sentence, or requiring him to appear from term to term, and for a reasonable period of time, and offer testimony to show good faith in some promise of reformation or continued obedience to the law. These latter instances of this method of procedure seem to be innovations upon the exercise of 1he power to suspend judgment as it exisited at common law; and while they are well established with us by usage, the practice should not be readily or hastily enlarged and
extended to occasions which, might result in unusual punishment or unusual methods of administering the criminal law. That this is a correct interpretation of
State v. Crook, supra,
is not only shown in the opinion itself, delivered by
Associate Justice Avery,
but in a subsequent opinion
(State v. Griffis,
117 N. C., 709) the same learned Justice thus speaks of that decision: “We have had occasion, in
State v. Crook,
115 N. C., 763, to comment upon the fact that the practice adopted in the courts of this State of suspending judgments upon the payment of costs is a peculiar one, for which we have searched in vain for precedents elsewhere. Indeed, it has proved difficult to find adjudications in other courts furnishing any analogies which would aid us in reaching a conclusion as to the force and effect of such orders. It appears, however, that a practice somewhat similar had prevailed for many years in the courts of Massachusetts before it received the legislative sanction by enactment into a statute.
Commonwealth v. Dondican,
115 Mass., 136. But that court and those of Florida and Mississippi (
Gibson v. State,
68 Miss., 241;
Ex parte Williams,
25 Fla., 310), where the Massachusetts idea seems to have been transplanted, though they may differ as to the manner or details of the proceeding, concur in holding that the sentence of the court, whether upon a finding or a confession of guilt, can be suspended only with the consent of the defendant. But as the postponement of punishment, with the possibility that it may never be inflicted, is deemed a favor to him, it is presumed by the court that he assents to such an order, when made in his presence and without objection on his part.
State v. Crook, supra,
at p. 766;
Gibson v. State, supra.
Where, under the practice prevailing in Massachusetts, the order was made that the judgment lie on file, it was entered, with the consent of both the defendant and the Commonwealth’s attorney, and left either at liberty to have the case reinstated on the docket and to demand that the court proceed to judgment.”
And the statutes of this State (Bevisal, secs.-1293, 1294) seein to give legislative sanction to the position indicated. It will thus be seen that while the power to suspend judgment is allowed with us, there are well-recognized restrictions upon its exercise, and no well-considered decision, here or elsewhere, will uphold the principle that sentence may be pronounced after an indefinite suspension of judgment, when every condition attached to it has been complied with, the fine and .costs paid, the defendant discharged, by order of court, and the cause removed from the docket. To allow a defendant, under such circumstances, to be imprisoned by the court would afford opportunity for a capri
cious exercise of arbitrary power unknown to the common law and disapproved and condemned by many well-considered decisions of the present time.
People v. Barrett,
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Hoke, J.,
after stating the case: The power of a court having jurisdiction of a cause to suspend judgment temporarily, on conviction of a criminal, for- some special purpose or for some determinate and reasonable period of time, was recognized at common law, and ordinarily obtains at the present day in courts of general jurisdiction and holding terms at stated periods.
State v. Bennett,
20 N. C., 43-51;
State v. Crook,
115 N. C., 760;
Commonwealth v. Maloney,
145 Mass., 205;
State v. Addy,
43 N. J. Law, 113; 4th Blackstone, 394; Chitty’s Cr. Law, 75.
Wherever the power was exercised, however, in a former time, except for the purpose of allowing defendant to move for a new trial or take some other steps in the orderly procedure of the case, it seems only to have been done with a view to ameliorate the condition of the defendant, as by giving him time to show that he was entitled to the benefit of clergy, or that the rigors of the sentence had been modified by act of Parliament, or by affording him opportunity to apply for pardon. Thus, in the citation from Blackstone,
supra,
the author says: “A reprieve (1) (from
reprendre,
to take back) is the withdrawing of a sentence for an interval of time, whereby the execution is suspended. This may be, first,
ex arbitrio judicis,
(2) either before or after judgment, as where the judge is not satisfied with the verdict, or the evidence is suspicious, or the indictment is insufficient, or he is doubtful whether the offense be within clergy, or, sometimes, if
it 'be a small felony, or any favorable circumstance appear in tbe criminal’s character, in order to give room to apply to tbe crown for either an absolute or conditional pardon.”
And Cbitty lays down tbe same doctrine,- in language nearly identical, tbus: “But tbe more usual course is for a discretionary reprieve to proceed' from tbe judge bimself, wbo^, from bis acquaintance with all tbe circumstances of tbe trial, is most capable of judging when it is proper. Tbe power of granting tbis respite belongs, of common right, to every tribunal which is invested with authority to award execution (d). And tbis power exists even in case of high treason, though tbe judge should be very prudent in its exercise (e). But it is commonly granted, where tbe defendant pleads a pardon which, though defective in point of form, sufficiently manifests tbe intention of the crown to remit the sentence (f) ; where it seems doubtful whether tbe offense is not included in some general act of grace (g);,or whether it amounts to so high a crime as that charged in the indictment (h). The judge sometimes also allows it before judgment, or, at least, intimates his intention to do so, as when he is not satisfied with the' verdict and entertains doubts as to the prisoner’s guilt; or when a doubt arises, if the crime be not within clergy; or when, from some favorable circumstance, he intends to recommend the prisoner to mercy.”
And in the more recent applications of the principle the better-considered decisions are to the effect that the power indicated should only be upheld when sanctioned by usage, and where the consent of the defendant was expressly given or would be implied from the fact that its evident purpose was to save defendant from a more grievous penalty permitted or required by the law.
Commonwealth v. John Dondican’s Bail, 115
Mass., 136. In this State, as shown in
Crook’s case, supra,
the power to suspend judgment and later impose sentence has been somewhat extended in its scope, so as to allow a suspension of judgment on payment of costs, or other reasonable condition, or continuing the prayer for judgment from term to term to afford defendant opportunity to pay the cost or to make some compensation to the party injured, to be considered in the final sentence, or requiring him to appear from term to term, and for a reasonable period of time, and offer testimony to show good faith in some promise of reformation or continued obedience to the law. These latter instances of this method of procedure seem to be innovations upon the exercise of 1he power to suspend judgment as it exisited at common law; and while they are well established with us by usage, the practice should not be readily or hastily enlarged and
extended to occasions which, might result in unusual punishment or unusual methods of administering the criminal law. That this is a correct interpretation of
State v. Crook, supra,
is not only shown in the opinion itself, delivered by
Associate Justice Avery,
but in a subsequent opinion
(State v. Griffis,
117 N. C., 709) the same learned Justice thus speaks of that decision: “We have had occasion, in
State v. Crook,
115 N. C., 763, to comment upon the fact that the practice adopted in the courts of this State of suspending judgments upon the payment of costs is a peculiar one, for which we have searched in vain for precedents elsewhere. Indeed, it has proved difficult to find adjudications in other courts furnishing any analogies which would aid us in reaching a conclusion as to the force and effect of such orders. It appears, however, that a practice somewhat similar had prevailed for many years in the courts of Massachusetts before it received the legislative sanction by enactment into a statute.
Commonwealth v. Dondican,
115 Mass., 136. But that court and those of Florida and Mississippi (
Gibson v. State,
68 Miss., 241;
Ex parte Williams,
25 Fla., 310), where the Massachusetts idea seems to have been transplanted, though they may differ as to the manner or details of the proceeding, concur in holding that the sentence of the court, whether upon a finding or a confession of guilt, can be suspended only with the consent of the defendant. But as the postponement of punishment, with the possibility that it may never be inflicted, is deemed a favor to him, it is presumed by the court that he assents to such an order, when made in his presence and without objection on his part.
State v. Crook, supra,
at p. 766;
Gibson v. State, supra.
Where, under the practice prevailing in Massachusetts, the order was made that the judgment lie on file, it was entered, with the consent of both the defendant and the Commonwealth’s attorney, and left either at liberty to have the case reinstated on the docket and to demand that the court proceed to judgment.”
And the statutes of this State (Bevisal, secs.-1293, 1294) seein to give legislative sanction to the position indicated. It will thus be seen that while the power to suspend judgment is allowed with us, there are well-recognized restrictions upon its exercise, and no well-considered decision, here or elsewhere, will uphold the principle that sentence may be pronounced after an indefinite suspension of judgment, when every condition attached to it has been complied with, the fine and .costs paid, the defendant discharged, by order of court, and the cause removed from the docket. To allow a defendant, under such circumstances, to be imprisoned by the court would afford opportunity for a capri
cious exercise of arbitrary power unknown to the common law and disapproved and condemned by many well-considered decisions of the present time.
People v. Barrett,
202 Ill., 287;
Neal v. State,
104 Ga., 509;
People v. Allen, 155
Ill.,
601; United States
v.
Wilson,
46 Fed., 748;
People v. Blackburn,
6 Utah, 347.
In tbe case before us, while tbe evidence offered by defendant was not admitted, a perusal of tbe record gives clear indication of tbe essential facts attending tbe plea of guilty on tbe part of defendant and tbe subsequent proceedings in tbe cause. At December Term, 1907, there were three indictments for retailing pending against defendant, and a plea of guilty was entered in each. In one case tbe defendant was sentenced to pay a fine of $25 and tbe costs. In tbe second case tbe judgment was suspended upon tbe payment of tbe costs; and in tbe third case tbe prayer for judgment was continued and tbe defendant required to give bond in tbe sum of $100 for appearance in court from term to term to show good behavior. Tbe fine and all tbe costs were paid by tbe defendant,, be appeared from court to court, and, having showed good behavior, was discharged, by order of court, at_Term, 1908, and tbe causes went off tbe docket. This, if not technically so, amounted, in substance, to a discontinuance of the cause
(Kistler v. State,
64 Ind., 371;
State v. Meager,
57 Vt., 398;
Drinkard v. State,
20 Ala., 1; Bishop’s Cr. Procedure, sec. 1393;
State v. Respass,
85 N. C., 534), and tbe court was thereafter without power to further molest tbe defendant on this charge.
We are of opinion that, on tbe facts presented, tbe judgment was without warrant of law, and void, and that tbe same must be • arrested and tbe prisoner discharged.
Reversed.