King v. Commonwealth

• Decision Date: 22 June 1923
• Citation: 246 Mass. 57,140 N.E. 253
• Parties: KING v. COMMONWEALTH.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

246 Mass. 57

140 N.E. 253

KING

v.COMMONWEALTH.

Supreme Judicial Court of Massachusetts, Middlesex.

June 22, 1923.

William F. King was convicted of an offense, and to review an order revoking probation, and committing him to the House of Correction, he brings error. Affirmed.

1. Criminal law k1001-Whole matter of execution of suspended sentence within supervision of district courts.

The suspended sentence statute (G. L. c. 279, s 1, 3) places the whole matter of final execution of the sentence within supervision of the district courts.

2. Criminal law k1001-Court, after suspending sentence until time fixed, had time to suspend it further.

Under G. L. c. 279, ss 1, 3, where district court on April 20 suspended execution of sentence and placed defendant on probation until July 20, it had power on July 20 to further suspend the sentence, and did not thereby lose jurisdiction to commit defendant.

3. Criminal law k1001-Suspension of sentence and probation need not be for identlcal periods.

Under G. L. c. 279, ss 1, 3, suspension of sentence and probation need not be for identical terms.

4. Criminal law k1216(1)-Period during which defendant on probation not part of term of sentence.

Where execution of sentence was suspended, and defendant was placed on probation, under G. L. c. 279, ss 1, 3, the time during which he was on probation was not part of the term of his sentence.

5. Criminal law k1001-Court authorized to enforce sentence on revocation of suspension, though original period had expired.

Under G. L. c. 279, ss 1, 3, the court, on revocation of suspension of sentence, had authority to enforce the sentence, though the original period for which defendant was sentenced had expired.

James P. Brennan and Wm. T. McCarthy, both of Boston, for plaintiff in error.

Jay R. Benton, Atty. Gen., and A. Chesley York, Asst. Atty. Gen., for the Commonwealth.

DE COURCY, J.

The case comes before us on a writ of error. The record returned and certified by the Third district court of Eastern Middlesex discloses the following facts: William F. King, the plaintiff in error, was arraigned in said court on April 17, 1922, upon a complaint for using a motor vehicle, the property of another, without authority. He pleaded not guilty, and the hearing was continued to April 20, on which day he pleaded guilty, and was sentenced to be committed to the House of Correction in Cambridge for the term of six months. The court ordered that the execution of the sentence be suspended and that said King be placed on probation until July 20, 1922. He complied with said order and waived his right to appeal. On the 20th of July the court further suspended said sentence until November 20, 1922, and on that day the court further suspended said sentence until April 20, 1923. On April 18, 1923, the court revoked the probation, and ordered the sentence to be in effect. Thereupon King was committed to said House of Correction for the term of six months from and after the 18th day of April, 1923. The errors assigned by the petitioner are:

‘That the suspension of the execution of the said sentence expired on July 20, 1922, and that the court had no authority to further continue the execution of said sentence,’ and ‘that the time set for the execution of the said sentence having expired the court unlawfully revoked the suspension of the execution of said sentence and had no authority or right to order your petitioner committed.’

It is provided by G. L. c. 279, § 1, that:

‘When a person convicted before a district court is sentenced to imprisonment, the court may direct that the execution of the sentence be suspended, and that he be placed on probation for such time and on such terms and conditions as it shall fix.’

Section 3 reads:

‘At any time before final disposition of the case of a person placed on probation in the custody of a probation officer, the probation officer may arrest him without a warrant and take him before the court, or the court may issue a warrant for his arrest. When taken before the court, it may, if he has not been sentenced, sentence him or make any other lawful disposition of the case, and if he has been sentenced, it may continue or revoke the suspension of the execution of his sentence. If such suspension is revoked. the sentence shall be in full force and effect.’

The power of placing on file complaints in criminal cases is conferred on district courts by G. L. c. 218, § 38. See, also, G. L. c. 218, § 31.

[1] A conflict of authority exists as to the common-law power of courts to stay the execution of a sentence after it has been pronounced; and in many jurisdictions the suspension of a sentence, especially for an indefinite time, is held to be an infringement upon the executive power to reprieve and pardon. See 33 L. R. A. (N. S.) 113, note; 39 L. R. A. (N. S.) 242, note; Ann. Cas. 1912B, 1192, note; Ex parte United States, 242 U. S. 27, 48, note, 37 Sup. Ct. 72, 61 L. Ed. 129, L. R. A. 1917E, 1178, Ann. Cas. 1917B, 355. In this commonwealth the practice of suspending sentence to a time certain, with the consent of the defendant, and placing him on probation, has long been recognized by statute and approved by this court. Marks v. Wentworth, 199 Mass. 44, 85 N. E. 81, and cases cited; Gabis, Petitioner, 240 Mass. 465, 134 N. E. 267. Elaborate provisions are made by our statutes for the appointment and duties of probation officers in the Boston municipal and juvenile courts, and in each district court (as well as in the superior court), and a state commission on probation is provided to promote uniformity, efficiency and co-operation of such officers in the several courts. G. L. c. 276, §§ 83 to 103, inclusive. After an investigation and recommendation by the probation officer, especially in cases of first offenders, the judge frequently places the defendant on probation upon certain terms and conditions, provided such disposition can be made with due regard to the protection of the community, and the past history and present disposition of the person investigated indicate that he may reasonably be expected to reform without punishment, and to comply with the conditions of probation. As was said in Mariano v. Judge of District Court, 243 Mass. 90, 92, 137 N. E. 369, 370:

‘The suspended sentence statute by its terms and its plain purpose shows that it was intended to place the whole matter of final execution of the sentence within...