Spencer v. State

• Decision Date: 11 November 1911
• Citation: 140 S.W. 597,125 Tenn. 64
• Parties: SPENCER et al. v. STATE.
• Court: Tennessee Supreme Court

140 S.W. 597

125 Tenn. 64

SPENCER et al. v. STATE.

Supreme Court of Tennessee.

November 11, 1911

Error to Criminal Court, Hamilton County; S.D. McReynolds, Judge.

"To be officially reported."

S. R Spencer and another, having been convicted of an offense bring error from an order reviving the sentence. Writ dismissed.

Lewis Shepherd and W. H. Cummings, for plaintiffs in error.

Charles T. Cates, Jr., Atty. Gen., for the state.

NEIL J.

In this case, in the trial court, judgment on a plea of guilty was entered against plaintiffs in error at the January term 1911, for fine and costs and imprisonment in the workhouse for 30 days for selling intoxicating liquors within four miles of an institution of learning, in violation of the statute upon that subject; but execution of the judgment or sentence was suspended during that term, and until and during the first day of the succeeding May term, "unless the court shall, during the present term, or on the first day of the next term, otherwise order; and the court, by the consent of the defendant in person in open court, reserves the right to enforce said jail [workhouse] sentence, and to issue a capias, or other proper process, and to make all necessary and proper orders at any time during the present term, or on the first day of the next term of the court, for the enforcement or further suspension of such jail sentence."

On the first day of the next term an order was entered directing that the sentence of imprisonment be "suspended from day to day during this term of the court, unless otherwise ordered by the court, and, without further orders are made by the court during this term, the sentence will stand suspended until the first day of the next term." During that (May) term, however, it was brought to the attention of the trial judge that plaintiffs in error had again violated the law in the same manner complained of in the indictment under which the judgment of fine and imprisonment had been pronounced. Upon investigation of this matter, by the testimony of witnesses in open court, he found the charge sustained, and thereupon, on motion of the district attorney general, caused to be entered an order "that said workhouse sentence herein be revived, and the clerk of the court shall issue a workhouse capias for said defendants, and they shall be placed in the custody of the workhouse authorities to carry out the sentence of the court." From this latter order the plaintiffs in error prayed an appeal to this court.

The contention on the part of the plaintiffs in error is that, the term of the court having ended at which the original judgment was entered, it was beyond the power of the trial judge at a succeeding term to make the last order. The contention of the state is that the suspension of the execution of the order at the January term was beyond the powers of the trial judge, and merely void, and hence he should have caused a capias to issue, to the end that the execution of the sentence might proceed, just as if the prisoners had escaped from custody after sentence.

There was undoubtedly a practice at common law of suspending the entry of judgment in criminal cases, after a verdict, on a plea of guilty, during the pleasure of the court, with the consent of the defendant, and subject to the power of the court to cause to be entered a judgment on the verdict or plea at any subsequent term, whenever the judge deemed the interests of justice required it. The origin of the practice is thus stated by Lord Hale: "Sometimes the judge reprieves before judgment, when 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 thus arbitrary reprieves may be granted or taken off by justice of gaol delivery, although their sessions be adjourned or finished; and this by reason of common usage." Hale, P. C. c. 58, p. 412. The rule had its origin at a time when the English courts of criminal law had no power to grant new trials, and their judgments were not subject to review on the facts by any higher court. It was therefore humane, and, in a sense, necessary. It cannot be necessary, however, in any jurisdiction where the same disabilities do not exist. Nevertheless, it has been adopted and is now enforced in many of the states of our Union, as may be seen from the cases cited in the note to Ex parte St. Hilaire, 101 Me. 522, 64 A. 882, as reported in 8 Am. & Eng. Ann. Cas. 385, and the notes to 12 Cyc. pp. 772-774; also the authorities cited in People v. Court of Sessions, 141 N.Y. 288, 36 N.E. 386, 23 L. R. A. 856, which case contains quite a full discussion of the subject. See, also, State v. Crook, 115 N.C. 760, 20 S.E. 513, 29 L. R. A. 260. It is recognized in Illinois, but the power of indefinite suspension is there denied. People v. Barrett, 202 Ill. 287, 67 N.E. 23, 63 L. R. A. 82, 95 Am. St. Rep. 230; People v. Allen, 155 Ill. 61, 39 N.E. 568, 41 L. R. A. 473. It is repudiated in Michigan (People v. Brown, 54 Mich. 15, 27, 28, 19 N.W. 571), in Georgia ( Neal v. State, 104 Ga. 509, 30 S.E. 858, 42 L. R. A. 190, 69 Am. St. Rep. 175), in South Carolina (State v. Abbott, 87 S.C. 466, 70 S.E. 6), and in Idaho (Ex parte Peterson, 19 Idaho, 433, 113 P. 729); that is, the power to suspend sentence during good behavior. Everywhere it is conceded the court has power to suspend judgment for a limited time, so as to enable the prisoner to move for a new trial or in arrest of judgment, or to enable the judge to better satisfy his own mind as to what the punishment should be, and on other similar grounds looking to a better enforcement, or to the safeguarding, of the rights involved in the particular controversy. In several states, however, the suspension is for an indefinite time, and is used as a disciplinary measure, keeping the prisoner subject to the control of the court by future orders, and, theoretically, under its observation, to secure future good behavior. Of course, under this practice, the judgment of conviction may never be entered, and the prisoner may go scot free. It has been objected that this indirectly results in the court's granting a pardon, thus exercising powers that belong only to the chief executive of the state. To this it has been replied, with technical correctness, that a conviction involves, not only a verdict, but also a sentence passed by the court, and until conviction the chief executive has no power to pardon. People v. Fabian, 192 N.Y. 443, 85 N.E. 672, 18 L. R. A. (N. S.) 684, 127 Am. St. Rep. 917, 15 Am. & Eng. Ann. Cas. 100, and note; People v. Court of Sessions, supra. Nevertheless, the result effected is really the same. The substance of a power reposed in the chief executive is, by a technical device, appropriated by the courts. We do not doubt that much good is promoted by the practice, in individual instances; but it is open to much abuse, especially in large centers of population. In course of a very brief time it may place hundreds of men, engaged in an illegal business, in a city or county, under the personal power of a single man, the judge of the criminal court; their liberty being subject to his uncontrolled discretion. This, in our judgment is nothing short of despotism.

While in Tennessee we have held that when, by oversight, judgment has not been entered in a criminal case upon the verdict of the trial term, it may be and should be at a subsequent term (Nolin v. State, 6 Cold. 14; State v. Miller, 6 Baxt. 514; Greenfield v. State, 7 Baxt. 18; Sharp v. State, 117 Tenn. 537, 97 S.W. 812), we have never recognized the common-law practice of an indefinite suspension of judgment, and rightly. The reasons assigned for the practice by Lord Hale do not exist here. Provisions are made by our statutes, not only for the granting of a new trial by the trial court, but also for a full review of the facts and the law on appeal to this court. So far as concerns the last reason assigned for the rule, the duty of leniency to youths for their first offense, this is fully covered by our statute, which provides that: "The Governor may grant pardons upon such conditions and with such restrictions and limitations as he may deem proper, and may issue his warrant to all proper officers to carry into effect such conditional pardon." Shan. Code, § 7236. This statute not only covers the case of youths, but the whole field of usefulness embraced by the common-law rule, as far as it applies to indefinite suspensions of sentence. It is true the power so devolved on the Governor is very great. So, indeed, is the power to pardon, in every aspect; but it is placed there by the Constitution. Moreover, he is under the constant observation of all of the people of the state, his term is brief, and any abuse of his powers can be quickly discovered and punished by the withdrawal of confidence and support.

But the case we are dealing with is not one wherein the trial judge suspended the sentence or judgment, but one wherein, after the entry of the judgment, he suspended the execution.

Even in those cases wherein the right to suspend the imposition of sentence is conceded, a much stricter rule is administered, where an effort is made by the trial judge to suspend the execution of a sentence already imposed. In State of Iowa v. Voss, 80 Iowa, 467, 45 N.W. 898, 8 L. R. A. 767, it is said:

"The question in the case is a simple one, and demands but brief discussion. The condition of the judgment puts its execution wholly within the discretion of the court below, and whether that discretion be exercised with or without justice or reason. If it be the pleasure of that court, process

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