Montgomery v. State

• Decision Date: 05 February 1935
• Docket Number: 8 Div. 52
• Citation: 163 So. 371,26 Ala.App. 334
• Parties: MONTGOMERY v. STATE.
• Court: Alabama Court of Appeals

163 So. 371

26 Ala.App. 334

MONTGOMERY v. STATE.

8 Div. 52

Court of Appeals of Alabama

February 5, 1935

Rehearing Denied Feb. 19, 1935

Appeal from Law and Equity Court, Lauderdale County; Orlan B. Hill Jr., Judge.

Ellis Montgomery was convicted of petit larceny, and he appeals.

Reversed and rendered.

Conforming to certified questions 163 So. 365.

Certiorari denied by Supreme Court in Montgomery v. State (8 Div. 648) 163 So. 377.

Raymond Murphy, of Florence, for appellant.

Thos E. Knight, Jr., Atty. Gen., for the State.

SAMFORD Judge.

The defendant was convicted on a charge of petit larceny and given a sentence of ten days as a punishment for the crime and forty days additional to pay the costs. This judgment was entered January 2, 1933, and suspended on that day and the defendant placed on probation, with a requirement that he report to the judge every other Saturday morning. On October 1, 1934, the defendant was hailed into court and resentenced for the term of the original sentence and to an additional term for having violated the terms of the probation. What the terms of the probation were does not appear and for that matter is of no moment in this appeal.

The power of the court to act in this matter depends upon the validity of an act of the Legislature approved September 28 1932. This court being unanimous in the opinion that the above act was and is void, for reasons hereinafter appearing propounded to the Supreme Court the following inquiry:

"To Honorable John C. Anderson, C.J., and Associate Justices:

"The Legislature of Alabama, at its session in 1932, passed the following act:

" 'Be It Enacted by the Legislature of Alabama:

" 'That Section One of an act entitled "An Act to provide for the suspension of imposition or execution of sentences and the placing of defendant upon probation; and to prescribe and give power to the State Courts to suspend imposition or execution of sentences and to place defendant upon probation and to give said Courts power of revocation and modification of probation; and to prescribe the duties of probationers," Passed July 14, 1931, be amended so as to read as follows:

" 'Section 1. The Several Courts of the State having original jurisdiction of criminal actions when it shall appear to the satisfaction of the Court trying the case or his successor in office that the ends of justice and the best interest of the public as well as the defendant, will be subserved thereby, shall have power after conviction or after a plea of guilty or nolo contendere for any crime or offense in all cases when the punishment is fixed by a judge or jury at not more than ten years in the penitentiary and in all cases where the defendant is sentenced to hard labor for the County to suspend the imposition or execution of sentence and to place the defendant upon probation for such period and upon such terms and conditions as they may deem best; or the Court may impose a fine and may also place the defendant upon probation in the manner aforesaid. The Court may revoke or modify any condition of probation or may change the period of probation. The period of probation together with any extension thereof shall not exceed five years. All modifications or extensions of the period of probation as granted hereunder to be made by the Judge of the Court where sentence was imposed.

" 'Approved September 28, 1932.' Acts Extra Session 1932, p. 54.

"In the opinion of this court this act violates section 43 of the Constitution of 1901, for the following reasons: "The Constitution of 1901, § 124, places in the hands of the Governor the power to grant reprieves and paroles, commutation of sentences and pardons. This power rests exclusively in the Chief Executive and any effort on the part of the Legislature to place such power elsewhere is an encroachment upon the prerogative of the Governor. The vicious tendencies of such legislation was pointed out by this court in Vinson v. State, 16 Ala.App. 536, 79 So. 316, 317.

"When the above act is considered in connection with its companion act (Acts 1931, p. 443, § 2), wherein it is provided: 'At any time after the probation period, but within the maximum period for which the defendant might originally have been sentenced, the Court may issue a warrant and cause the defendant to be arrested and brought before the Court. Thereupon the Court may revoke the probation or the suspension of sentence, and may impose any sentence which might originally have been imposed,' it will be seen to be a thinly veiled effort under the guise of a suspension of sentence to permit each trial judge in the state to grant paroles and commutation of sentences after judgment and sentence, which can only be done by the pardoning powers.

"The suspension of sentences provided for in the foregoing act is entirely foreign to the inherent power of courts to suspend sentences as was pointed out by us in Vinson's Case, supra, in which opinion we said: 'To make the execution of the sentences of parties convicted of crime dependent upon their future good behavior, which good behavior could be alone determined by the judges fixing the sentences, would be not only an encroachment upon the powers of the Governor as fixed by the Constitution, but would be to set up a government of men and not of laws,' in direct opposition to the expressed genius of our institutions.

"For the foregoing reasons as well as others that might be suggested, this court is of the opinion that the act above cited is in violation of the Constitution of 1901, § 43, and is therefore void.

"The question is respectfully referred to the Supreme Court under authority of Code 1923, § 7322."

To which inquiry is the following response:

"Response to Certified Question by the Court of Appeals of Alabama.

"To the Honorable Court of Appeals of Alabama:

"KNIGHT Justice.

"In reply to your inquiry as to whether or not the act of the Legislature of Alabama, entitled 'An Act To provide for the suspension of imposition or execution of sentences and the placing of defendant upon probation; and to prescribe and give power to the State Courts to suspend imposition or execution sentences and to place defendant upon probation and to give said Courts power of revocation and modification of probation; and to prescribe the duties of probationers,' passed over the Governor's veto July 14, 1931, Acts 1931, p. 444, as amended by the act of the Legislature approved September 28, 1932, Acts Extra Session 1932, p. 54, offends sections 43 and 124 of the Constitution, or either of said sections:

"We note that the judges of the Court of Appeals were of the opinion that the act, as amended, was unconstitutional and void, in that it was but an effort on the part of the Legislature to transfer to the courts power to grant paroles and commutations of sentences, a power expressly conferred upon the Governor.

"The state government, as pointed out in the case of State ex rel. French et al. v. Stone, County Treasurer, 224 Ala. 234, 139 So. 328, is divided into three co-ordinate branches, legislative, judicial, and executive; each has a sphere of action, and within that sphere each is, and must be regarded as, supreme. Powers confided to the one cannot be exercised by the others. That the Legislature, in the absence of constitutional restraint, is all-powerful in dealing with matters of legislation, it must be conceded, but the Legislature can at no time usurp the functions of either the executive or judicial department, and when it attempts to do so, its acts are abortive. Nor can it, in the exercise of its legislative powers, transfer from the executive department to the judicial department power expressly and exclusively conferred upon the executive department by the Constitution. Any attempt to do so would be just as abortive as if the Legislature itself had attempted to exercise that power in the first instance.

"It is too clear to require argument, or citation of authority to demonstrate the proposition, that courts in this state, clothed with jurisdiction to try criminal actions, have no inherent power to suspend indefinitely sentences imposed on persons convicted of crime. The limit of such courts' powers to suspend sentences is reached, when the courts suspend the sentence for the purpose of giving effect to an appeal, writ of error, or certiorari, and to preserve the status quo of the parties pending such proceeding. Ex parte Knight, 61 Ala. 482.

"If the courts, therefore, rightly exercise power to suspend sentences indefinitely, or to do otherwise than to put their sentence into execution, such power must be conferred upon them either by statute, or by constitutional enlargement of their jurisdiction and powers. And, of course, if the Legislature is prohibited by constitutional limitation from conferring this power, any effort on its part to do so would be abortive.

"There is no pretense that this power of suspension is conferred by any provision of the Constitution. Then, was it within legislative competence to do so?

"Section 43 of the Constitution provides: 'In the government of this state, except in the instances in this Constitution hereinafter expressly directed or permitted, the legislative department shall never exercise the executive and judicial powers, or either of them; the executive shall never exercise the legislative and judicial powers, or either of them; the judicial shall never exercise the legislative and executive powers, or either of them; to the end that it may be a government of laws and not of men.'

"From this provision of our organic law, it is clear and manifest that the powers of government are distributed to three departments, each of which is confided to a separate body of

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