Neal v. State

• Citation: 30 S.E. 858,104 Ga. 509
• Parties: NEAL v. STATE.
• Decision Date: 24 May 1898
• Court: Georgia Supreme Court

30 S.E. 858

104 Ga. 509

NEAL v. STATE.

Supreme Court of Georgia

May 24, 1898

Syllabus by the Court.

1. There is no law of force in this state which confers upon a judge any power or authority to suspend the execution of a sentence imposed in a criminal case, except as an incident to a review of the judgment; and therefore a sentence, to which no exception is taken, directing, among other things, that the accused do work in a chain gang for a term of six months cannot lawfully be qualified by adding thereto the words "Sentence of six months suspended until further order of the court." Such words in such a sentence are of no force, and consequently should be ignored, and the sentence executed just as if they did not appear therein.

2. One upon whom such a sentence has been imposed cannot, though more than six months may have elapsed from the date of the sentence, be held to have served out the term therein mentioned, when in point of fact he has never been placed in a chain gang; more especially when the sentence itself declares "that this sentence begin and be counted from the time of the reception of said defendant in the chain gang under this sentence and judgment."

3. It follows from the foregoing that this court will not set aside an order directing the execution of a sentence framed as above indicated, although such order was passed more than six months after the imposition of the original sentence, and though the accused was not called upon to show cause why such order should not be made.

Error from superior court, Gordon county; A. W. Fite, Judge.

J. M Neal was convicted of crime, and brings error. Affirmed.

W. R. Rankin, for plaintiff in error.

Sam P. Maddox, Sol. Gen., for the State.

FISH J.

On the 8th day of March, 1897, in the superior court of Gordon county, the plaintiff in error was found guilty of the offense of adultery and fornication. On the same day the court sentenced him as follows: "Whereupon it is considered, sentenced, and adjudged by the court that J. M. Neal do pay within three days a fine of three hundred dollars and all costs of this prosecution, and work in the chain gang six months, and then be discharged, or, in default of such payment, that said defendant do work in a chain gang or the public works, or on such other works as the county authorities may employ the chain gang, for and during the full term of twelve months, and then be discharged; and it is further ordered that this sentence begin and be counted from the time of the reception of said defendant in the chain gang under this sentence and judgment. The defendant may be discharged at any time on the payment of said fine and costs. Sentence of six months suspended until further order of the court." The bill of exceptions states that the verdict was a consent verdict, and that the defendant paid the fine and costs, and was discharged. On March 12, 1898, at the February term of the court, the following order was passed by the judge: "Whereas, at the February term, 1897, of this court, J. M. Neal pleaded guilty to the offense of adultery and fornication, and was sentenced by the court to pay a fine of three hundred dollars and all costs, and to work in the chain gang for and during the term of six months, and the said sentence of six months was suspended till the further order of the court, it is therefore, upon sufficient cause being shown to the court, ordered that the sheriff of said county and his lawful deputies arrest said J. M. Neal, and that six months' sentence in the chain gang be enforced." To this order Neal excepted because it was "allowed and issued without notice to him, and is not based upon any rule or proceeding, issued or instituted by the court, calling upon defendant to show cause why such order should not be passed."

1. The plaintiff in error contends here that "the action of the court, after passing sentence, in suspending the execution of the same," was "an unwarranted interference with the powers, duties, and functions of the executive." We think that this contention is sound. The constitution of the state expressly provides that "the governor shall have power to grant reprieves and pardons, to commute penalties remove disabilities imposed by law, and to remit any part of a sentence for offenses against the state, after conviction, except in cases of treason and impeachment, subject to such regulations as may be provided by law relative to the manner of applying for pardons. Upon conviction for treason he may suspend the execution of the sentence and report the case to the general assembly at the next meeting thereof, when the general assembly shall either pardon, commute the sentence, direct its execution, or grant a further reprieve. He shall, at each session of the general assembly, communicate to that body each case of a reprieve, pardon or commutation granted, stating the name of the convict, the offense for which he was convicted, the sentence and its date, the date of the reprieve, pardon or commutation, and the reasons for granting the same." Civ. Code, § 5815. There is no provision in the constitution authorizing the courts of the state having jurisdiction in criminal cases to exercise any of these powers; and the constitution declares that "the legislative, judicial, and executive powers shall forever remain separate and distinct, and no person discharging the duties of one shall at the same time exercise the functions of either of the others, except as herein provided." If the execution of a sentence which has been imposed in accordance with the law can be suspended, either in whole or in part, as the judge may see fit, during the pleasure of the court, then the court may in this way indirectly grant a reprieve, commute a penalty, or remit any part of a sentence, and thus practically exercise powers which the constitution confers exclusively upon the governor of the state; for a sentence, the execution of which is suspended during the pleasure of the court, may never be enforced, as it may never be the pleasure of the court to revoke the order of suspension and enforce its execution. If a court can indefinitely suspend the execution of a sentence, it may even indirectly exercise all the pardoning power conferred upon the chief executive of the state, except that portion of it which embraces the removal of disabilities imposed by the law in certain criminal cases as a consequence of conviction. The fundamental law provides that when the governor exercises any of these functions he shall report his action, and the reasons therefore, to the legislature. Surely the judges of courts having criminal jurisdiction cannot, unhampered by such a requirement, exercise any of these powers. In State v. Voss, 80 Iowa 467, 45 N.W. 898, it was held that a court has no authority to suspend at pleasure the execution of a judgment for a crime committed, and that a provision to this effect in a sentence is void. In Re Markuson, 5 N.D. 180, 64 N.W. 939, the court ruled that several orders purporting to suspend the operation of a judgment in a criminal case, which, for reasons stated in the opinion, could not operate as a stay or supersedeas pending an appeal to the supreme court, were without authority of law, and null and void. In the case of In re Webb, 89 Wis. 354, 62 N.W. 177, it was held that a court cannot suspend a sentence which it has pronounced in a criminal case, except as incident to a review of the case upon writ of error, or upon other well-established legal grounds. The only case which we have found, involving the question of the power of a court to indefinitely suspend the execution of an imposed sentence, which conflicts with the view which we have taken of this question and with the authorities cited above, is State v. Whitt, 117 N.C. 804, 23 S.E. 452. In that case a defendant, after being sentenced to five years' imprisonment, and serving six days, was brought into court, and, on his agreeing to pay the costs of prosecution into court, the judgment was suspended; and it was held that the court had power, at a subsequent term, on the defendant's failure to pay such costs, to sentence him to imprisonment for one year. Upon the question whether a court, after a conviction, can indefinitely suspend the imposition of a sentence, the authorities are in conflict. In People v. Blackburn, 6 Utah, 347, 23 P. 759, U.S. v. Wilson, 46 F. 748, and People v. Morrisette, 20 How. Prac. 118, this question was squarely presented, and in each case decided in the negative, upon the ground that the authority to relieve a person convicted of a criminal offense is not given to the courts, but belongs to the pardoning power; but in the Utah case a mandamus to compel sentence was denied on the ground that the judge, in his discretion, had evidently intended to impose the minimum punishment, which was merely nominal, and that the purely prefunctory duty and useless expense of formally imposing sentence would not be compelled by mandamus. In People v. Mueller (Ill.) 4 Cr. Law Mag. 725, People v. Court of Sessions of Monroe Co., 141 N.Y. 288, 36 N.E. 386, and People v. Webster (Sup.) 36 N.Y.S. 745, the same question was decided in the affirmative. In New York there was a special statute authorizing the criminal court to exercise this power, but it was held that, independent of the statute, it existed at common law, and that it did not encroach upon the constitutional powers of the executive to grant reprieves and pardons; and such is the effect of the ruling in the Illinois case, though in that case the court held that the minimum sentence allowable was practically nothing, and said: "The difference between a suspension of sentence and any punishment I should impose, on the theory of guilt, is such an incalculable minimum...