Fuller v. State

• Decision Date: 11 March 1912
• Docket Number: 15,521
• Citation: 57 So. 806,100 Miss. 811
• Court: Mississippi Supreme Court
• Parties: CHAS. FULLER v. STATE

57 So. 806

100 Miss. 811

CHAS. FULLER v. STATE

No. 15,521

Supreme Court of Mississippi

March 11, 1912

APPEAL from the circuit court of Hinds county, HON. W. A. HENRY Judge.

Chas Fuller was convicted of unlawful retailing. From an order imposing a suspended sentence defendant appeals.

The facts are fully stated in the opinion of the court.

Suggestion of error overruled.

Potter & Hindman, for appellant.

There are many cases upon the power of the court to suspend the execution of a sentence either indefinitely or to a time certain, the decisions being in conflict.

There are a great many other cases, somewhat similar that have to do with recommitment, on constitutional provision and statutes, providing for pardons, parols, etc., but we must insist that this case is not governed by decisions on the power of the court to suspend passing of sentence, or to suspend execution of sentence or in those cases involving pardon and parol laws. Those cases only apply here that have to do with the power of a judge to pronounce a sentence contingent on the happening of some uncertain future event cases in a distinct class to themselves.

Scott v. Chischester, 16 L. R. A. (N. S.) 304. Prisoner who is paroled without statutory authority cannot upon violation of his parol, be required to remain in prison beyond the time when the original sentence expired.

Ex parte Williams Clendenning, 97 P. 650. Defendant, on a plea of guilty was sentenced to pay costs and a fine and thirty days in jail but the jail sentence was suspended "on good behavior" held after the lapse of time involved in the sentence and after the term. The court had no power to issue commitment on such judgment.

In re Stricker, 51 Kan. 100. Defendant was convicted of the unlawful sale of intoxicating liquors and the operation of a sentence suspended "during such time as the defendant shall keep the peace with all mankind and desist from all unnecessary use of intoxicating liquors, and refrain from becoming intoxicated. Held the defendant could not be recommitted after the expiration of the term named in the sentence.

In the above cases the courts said that to hold a sentence over a man and then require him at some future time to serve the entire sentence, was a greater punishment than the original sentence, because he is partially restrained during the time the sentence is hanging over him and is compelled to serve the full sentence in addition thereto.

Sylvester v. State, 65 N.H. 193, holds in a case similar to this one that the courts of that state have inherent powers to suspend sentence pending good behavior.

This is the only case we have found holding directly against our contention.

Suttle v. Lang, 100 Me. 123, November 10, 1902. Petitioner arrested before the Skowhegan municipal court, charged with the offense of the unlawful sale of intoxicating liquors. Before pleading to the complaint the petitioner, the prosecuting complainant and the judge came to an agreement by which the petitioner should plead guilty and be sentenced to fine, costs and imprisonment, but no mittimus in execution of the sentence unless the petitioner should again be guilty of unlawfully selling intoxicating liquors. The judge afterwards believed the defendant guilty of selling intoxicating liquors and ordered the mittimus to issue. Held that the municipal court had no legal right to issue the mittimus when it did and the arrest and commitment under it illegal and the prisoner discharged.

Burch & Stricker, for appellant.

An examination of the authorities indicate a classification of cases on this subject as follows:

(1) The suspension of the rendition, or pronouncement of sentence or judgment without statutory authority, as a power inherent in the court.

(2) The suspension of the same with statutory authority. The cases being in conflict as to the power of the court to do either on the ground of an encroachment upon the pardoning power.

(3) The suspension of the execution of the whole of a sentence for a limited time, without statutory authority. (Some cases holding that this might be done until the end of the term for certain purposes, others holding to the contrary.)

(4) The suspension of the execution of the whole of a sentence for a limited time with statutory authority, and even beyond the term, for certain specific purposes. (Some cases denying this power in the absence of constitutional permission; all denying it in the absence of statutory permission.)

(5) The suspension of the execution of the whole of a sentence for an indefinite time, and on the happening of a future and contingent event. (The courts universally denouncing this practice as absolutely without legal authority.)

But we have searched the books in vain for a single case where the facts and circumstances are like the case presented here; that is to say, where under an alternative penalty statute, one of the penalties was imposed and enforced, and the other entered by the way of notation and memoranda, and referred to the vicissitudes of futurity, that the court, or any court, has held that the same was valid and legal and could in any manner be enforced. Such memoranda, or notation, has been universally defined as void and non-enforceable, or declared "nil" and non-existent.

We refer the court to the following authorities, in their order, which, when considered in connection with the principal features of this case, will we believe, result in a reversal thereof, an annulment of the imprisonment notation on the docket, and a final discharge of the prisoner. Ex parte William Clendenning (Okla.), 97 P. 650; Tuttle v. Lang, 60 A. 892; In re Strickler, 51 Kan. 700; Morris v. State, 1 Black. (Ind.) 37; Com. v. Patterson, 1 Leg. Chron. (Pa.) 73; Cheeseman v. People; Larney v. Cleveland, 34 Oh. St. 599; Wallace v. State, 41. Fla. 547; Brownbridge v. People, 38 Mich. 751; In re Webb, 89 Wis. 354; In re Markuson, 5 N.D. 180.

Jas. R. McDowell, assistant attorney-general, for appellee.

The single question here presented is as to the authority of the court to impose a sentence and suspend the execution thereof and subsequently to order the sentence carried out. This is common practice among many of the circuit judges and seems now to be tested in the supreme court for the first time, though a case similar to the one at bar was presented in 68 Mississippi, to which I shall hereafter refer.

The court must not confuse the two distinct propositions which are, first, the suspension of the imposition of the sentence; and, second, the suspension of the execution of a sentence previously imposed. I contend that the court has the right to do either, but decisions in many states vary, so I call attention in advance to the question presented by the case at bar, which is the suspension of the execution of the sentence.

Mr. Bishop, in his New Criminal Procedure, vol. 1, sec. 1299, p. 799, uses this language: "Every court which has power to award an execution may grant a suspension of its own sentences." The power seems to be inherent in courts to do this in the absence of any constitutional or statutory prohibition. The courts of the several states, however, seem to be divided, both as to the power of a court to suspend pronouncement of sentence, and thereafter impose it, and of the power of a court to impose a sentence and suspend its execution and afterwards call for its enforcement; so I shall endeavor to give the court the benefit of a few citations upholding the announcement of our own court, which I presume the court as at present constituted will follow.

Our own court in Gibson v. State, 68 Miss. 241, where a defendant pleaded guilty to an indictment, charging him with unlawful retailing and the court entered a judgment suspending the sentence as to fine, but taxing the defendant with costs, and afterwards, on motion of the district attorney, sentenced the defendant to pay a fine and costs, speaking through Justice Campbell, said:

"As the defendant pleaded guilty, and was liable to be immediately sentenced to pay a fine and costs, and to be imprisoned, and the court, presumably with the consent of the defendant, for whose benefit it was and who did not object, suspended judgment and postponed sentence except for costs, no wrong was done to him by pronouncing at a future term the sentence, which might have been immediately given, but was thus delayed.

"It is not the case of a second punishment for an offense."

In the case of Sylvester v. State, 65 N.H. 193, s. c. 20 A. 954, the court held likewise, using the following language:

"It has been a common practice in this commonwealth after verdict of guilty in a criminal case, when the court is satisfied that, by reason of extenuating circumstances, or of the pendency of a question of law in a like case before a higher court, or other sufficient cause, public justice does not require an immediate sentence, to order with the consent of the defendant and of the attorney for the commonwealth, and upon such terms as the court in its discretion may impose, that the indictment be laid on file; and this practice has been recognized by statute. Statutes 1865, ch. 223; 1869, ch. 415, s. 60. Such an order is not equivalent to a final judgment, or to a nolle prosequi or discontinuance by which the case is put out of court, but is a mere suspending of active proceedings in the case, which dispenses with the necessity of entering formal continuances upon the dockets, and leaves it within the power of the court at any time, upon the motion of either party, to bring the case forward and pass any lawful order or judgment therein." Com. v. Dowdican's Bail, 115 Mass. 133, 136.

And again, on the same subject: Weber v. State (Ohio), 41 L. R. A. 472; State v. Crook (N....