Ex Parte Bates.
| Decision Date | 17 July 1915 |
| Docket Number | No. 1813.,1813. |
| Citation | 151 P. 698,20 N.M. 542 |
| Parties | EX PARTE BATES. |
| Court | New Mexico Supreme Court |
OPINION TEXT STARTS HERE
Syllabus by the Court.
A statute authorizing the courts in their discretion to suspend any sentence imposed upon persons convicted of felony, upon such terms and conditions as they shall deem proper, being section 1 of chapter 32, Laws 1909, as the same appears in the Code of 1915 as section 5075, does not encroach upon the constitutional power of the executive to grant reprieves and pardons.
A court, having power to make an order suspending the execution of its judgment in criminal cases, necessarily, upon a violation of such order, has the power to revoke the same and commit the accused.
Application by Thomas M. Bates for writ of habeas corpus. Petitioner remanded to custody, and writ discharged.
This is an application by Thomas M. Bates for a writ of habeas corpus, based upon the following state of facts, to wit: The petitioner, on the 21st day of October, 1914, was sentenced to serve a term in the state penitentiary of not less than 12 nor more than 15 months, from and after said date, upon a verdict of guilty by a jury upon an indictment charging an assault with intent to kill. The judgment of the district court was suspended during the good behavior of the defendant, and upon payment of the costs in said action. Thereafter, on May 15, 1915, the petitioner was charged with an assault with a deadly weapon, and upon examination was bound over to the grand jury to appear at the September, 1915, term of the district court of Grant county. On May 22, 1915, the district court of Grant county made an order, based upon the second charge, requiring the petitioner to appear on the 25th day of May, 1915, and show cause why the suspended sentence of October 21, 1914, should not be enforced. On June 1, 1915, the petitioner answered said rule to show cause, challenging the jurisdiction of the trial court, and the said district court, after hearing the testimony of two witnesses concerning the fact of the second offense, ordered that a commitment issue committing the petitioner to the state penitentiary to serve the suspended sentence under the former judgment of said court.
A court, having power to make an order suspending the execution of its judgment in criminal cases, necessarily, upon a violation of such order, has the power to revoke the same and commit the accused.
H. D. Terrell, of Silver City, for relator.
F. W. Clancy, Atty. Gen., and H. S. Bowman, Asst. Atty. Gen., for respondent.
HANNA, J. (after stating the facts as above).
[1] The petition presents a novel question, and one of first impression in this jurisdiction, not without its difficulties, and the solution of which has developed a wide divergence of opinion in those courts which have had the question before them; the principal question presented being whether the act of the district court, in ordering a suspension of the sentence fixed by its judgment, was an encroachment upon the power vested by the Constitution in the executive to pardon and reprieve. Numerous cases are to be found in the books holding that the power to suspend sentence is inherent in all courts of record, and essentially a judicial function, although this view of the matter has not been adopted by all the courts, and a minority strongly adhere to a contrary rule. We are not confronted with this phase of the question, however, because the question does not arise upon the theory that the attempted exercise of this power is one necessarily inherent in the court; but the question as presented for our consideration must be determined by a consideration of whether or not section 1 of chapter 32 of the Laws of 1909 by conferring upon courts, in their discretion, the right to suspend any sentence after conviction for felonies, is violative of the provisions of section 6 of article 5 of our state Constitution, conferring upon the Governor the power to grant reprieves and pardons after conviction for all offenses, except treason, and in cases of impeachment. The act of the Legislature referred to, which is incorporated in the New Mexico Code of 1915 as section 5075, is as follows:
The solution of the question as to whether or not the foregoing act of the territorial Legislature is unconstitutional is, as stated, the first matter presented for our attention. By the petitioner it is contended that the act is constitutional, and that the action of the district court in suspending sentence was one within its jurisdiction, but that, before the petitioner can be committed under the judgment, it is necessary that he should be found guilty of the subsequent offense, if any there be, in a manner prescribed by law, and that the action of the district court in taking the testimony of witnesses, and finding that the condition of the suspended sentence had been violated, was an erroneous exercise of jurisdiction, in that the district court, by so doing, was usurping the functions of the trial jury.
The Attorney General takes the position that the act authorizing the suspension of a sentence is in conflict with the provision of the Constitution vesting in the executive the power to grant reprieves and pardons after conviction for all offenses. This provision of our state Constitution is as follows:
“Subject to such regulations as may be prescribed by law, the Governor shall have power to grant reprieves and pardons, after conviction for all offenses except treason and in cases of impeachment.” Section 6, art. 5.
Assuming this to be true, the Attorney General argues that the action of the district court in suspending the sentence imposed upon the petitioner was a nullity, and that the commitment upon the judgment and sentence imposed on October 21, 1914, could therefore issue at any time, upon the theory that the judgment imposed is not satisfied until the sentence has been served. The right of the district court to withhold its judgment, or to temporarily delay the pronouncement of sentence, is not brought into question. As we understand the contention of the Attorney General, it would appear that he has assumed that the Legislature has no right to authorize any court to suspend a sentence already imposed, and in this we might agree that the Attorney General is correct; but such is not the state of facts presented for our consideration at this time.
The judgment of the district court here questioned was complete in all particulars, but contained the condition, contemplated by the statute as a concluding part of the judgment, that the judgment and sentence of the court be suspended during the good behavior of the defendant, and upon payment of the costs accrued in the cause. The condition was, therefore, a part of the judgment, and it was not an attempt to suspend a judgment previously imposed, but was, as is clearly indicated by the language of the judgment, a suspension thereof during good behavior, and to that extent affects only the degree of the punishment imposed for the offense charged. It is clearly within the province of the Legislature to denominate and define all classes of crime, and to prescribe for each a minimum and maximum punishment. This the Legislature has done as to practically all offenses known to the common law, and many others created by statute, and in a very large number of offenses for which punishment has been prescribed the Legislature has shown an intent to vest in the trial courts a large discretion in the matter of the degree of punishment to be imposed in individual cases, upon the theory, doubtless, that justice can be best served by a proper exercise of a discretion vested in the courts, as they, having all the facts and circumstances surrounding the individual cases before them, can best administer the justice which the public has a right to exact, and yet at the same time temper the same with that degree of mercy which the individual case and peculiar circumstances thereof may demand.
This disposition of Legislatures to relax the harsh penalties of the common law is more clearly apparent in legislation of the character of the act of 1909 now under consideration than in the general or special statutes referred to. In this act there is shown a clear intention of the Legislature to modify in given cases the penalties prescribed for any felony or other crime punishable by imprisonment in the penitentiary, and to permit the suspension of judgment in any such case in the discretion of the trial court. It is clear, therefore, that this statute must be read in connection with every statute prescribing the punishment to be imposed for the commission of any crime denominated as a felony, and it may well be considered that the Legislature, by the act of 1909, has vested in the courts the right to say that in given cases no punishment at all shall be imposed, provided the defendants in such cases comply with the terms and conditions which the judge, in the exercise of a sound discretion, shall attach to and incorporate in his judgment. If this reasoning be sound, it may well be said that there can be no conflict between a legislative act of this character and...
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