Forsyth v. Court of Sessions of Monroe Cnty.

• Decision Date: 27 February 1894
• Citation: 36 N.E. 386,141 N.Y. 288
• Parties: PEOPLE ex rel. FORSYTH, District Attorney, v. COURT OF SESSIONS OF MONROE COUNTY.
• Court: New York Court of Appeals Court of Appeals

141 N.Y. 288

36 N.E. 386

PEOPLE ex rel. FORSYTH, District Attorney,

v.COURT OF SESSIONS OF MONROE COUNTY.

Court of Appeals of New York.

Feb. 27, 1894.

Appeal from supreme court, general term, fifth department.

Mandamus on relation of George D. Forsyth, district attorney, to the court of sessions of Monroe county, to pass sentence on John Attridge on plea of guilty of grand larceny in the second degree. From a judgment of the general term (21 N. Y. Supp. 659) affirming the special term's order granting the writ, (19 N. Y. Supp. 508,) defendant appeals. Reversed.

H. B. Hallock, for appellant.

Fred C. Hanford, for respondent.

O'BRIEN, J.

The question presented by this appeal is novel and important. The supreme court has by mandamus commanded the court of sessions to proceed to judgment in a criminal case, and to pass sentence upon the defendant after conviction. The power of the court to grant the writ under the circumstances disclosed by the record is denied. On the 4th of March, 1892, John Attridge was convicted in the court of sessions of Monroe county, composed of the county judge and two justices of sessions, upon his own plea of guilty, of the crime of grand larceny in the second degree. The defendant was a clerk in a mercantile firm, and the offense consisted in the appropriation to his own use of a sum of money which belonged to his employers, and which came to his possession, or under his charge, by virtue of his employment. There were supposed to be certain mitigating circumstancesconnected with the transaction, growing out of his youth, previous good character, and otherwise, that were presented to the court through a petition signed by numerous respectable citizens, who prayed that his sentence be suspended. Three days after the conviction he was brought before the court, and the county judge presiding sentenced him to imprisonment. The two justices of sessions dissented, and announced, as the judgment of the court, that sentence be suspended. The defendant was remanded to the custody of the sheriff, but discharged soon after from the commitment upon habeas corpus granted by a justice of the supreme court holding a court of oyer and terminer, on the ground that the sentence pronounced by the county judge, not having been concurred in by a majority of the court, was illegal. He was, however, remanded to the custody of the sheriff, to the end that the court of sessions might pronounce a legal sentence in the case. He was again brought before that court on the 14th of March, and the judgment thereupon given that sentence be suspended during good behavior. The county judge dissented, and the defendant was thereupon discharged from custody. On the 27th of June following, the supreme court at special term, upon the application of the district attorney, granted a peremptory writ of mandamus commanding the court of sessions to proceed to judgment, and to sentence the defendant to the punishment prescribed by law. The order granting the writ has been affirmed at the general term.

The precise question involved, therefore, is the power of a court of record, possessing jurisdiction in criminal cases, to suspend judgment after conviction. The court of sessions is a court possessing superior criminal jurisdiction and common-law powers. People v. Bradner, 107 N. Y. 1, 13 N. E. 87. It possesses all the powers formerly exercised by superior courts of criminal jurisdiction in England, except so far as these powers have been changed or abrogated by statute. There can, I think, be no doubt that the power to suspend sentence after conviction was inherent to all such courts at common law. The practice had its origin in the hardships resulting from peculiar rules of criminal procedure, when the court had no power to grant a new trial, either upon the same or additional evidence, and the verdict was not reviewable upon the facts by any higher court. The power, as thus exercised, is described in this language by Lord Hale: ‘Sometimes the judge reprieves before judgment, as where he is not satisfied with the verdict, or the evidence is uncertain, or the indictment is insufficient, or doubtful whether within clergy; also, when favorable or extenuating circumstances appear, and when youths are convicted of their first offense. And these arbitrary reprieves may be granted or taken off by the justices of gaol delivery, although their sessions be adjourned or finished; and this, by reason of common usage.’ 2 Hale, P. C. c. 58, p. 412. This power belonged, of common right, to every tribunal invested with authority to award execution in a criminal case. 1 Chit. Cr. Law, (1st Ed.) 617, 758. Without attempting to collate all the authorities on the subject, it is sufficient to say that the power to suspend sentence at common law is asserted by writers of acknowledged authority on criminal jurisprudence, by the uniform practice of the courts, and numerous adjudged cases. 2 Hawk. P. C. c. 51, § 8; 1 Bish. Cr. Proc. § 1124; 4 Bl. Comm. c. 31; People v. Graves, 31 Hun, 382; People v. Harrington, 15 Abb. N. C. 161;People v. Whipple, 9 Cow. 715; Carnal v. People, 1 Parker, Cr. R. 262, 266; Com. v. Dowdican, 115 Mass. 136; State v. Addy, 43 N. J. Law, 114; Weaver v. People, 33 Mich. 297;People v. Reilley, 53 Mich. 260, 18 N. W. 849;Com. v. Maloney, 145 Mass. 205, 13 N. E. 482;Sylvester v. State, 65 N. H. 193, 20 Atl. 954.

The courts below were of the opinion that section 12 of the Penal Code deprives the court, in all cases, of any discretion with respect to the imposition of the punishment prescribed by law. The language of that section is as follows: ‘The several sections of this Code which declare certain crimes to be punishable as therein mentioned, devolve a duty upon the court authorized to pass sentence to impose the punishment prescribed.’ This provision was not intended to, and did not, abrogate any power over the judgment which the courts possessed before. The provision is declaratory of the law as it always...