State ex rel. Conway v. Hughes

• Decision Date: 19 June 1934
• Docket Number: 7718.
• Citation: 255 N.W. 800,62 S.D. 579
• Parties: STATE ex rel. CONWAY, Atty. Gen., v. HUGHES, Circuit Judge, et al.
• Court: South Dakota Supreme Court

255 N.W. 800

62 S.D. 579

STATE ex rel. CONWAY, Atty. Gen., v. HUGHES, Circuit Judge, et al.

No. 7718.

Supreme Court of South Dakota

June 19, 1934

Original proceeding in certiorari by the State, on the relation of Walter Conway, Attorney General, against John F. Hughes, as Judge of the Circuit Court in and for Stanley County, and others, to review defendant judge's order suspending the sentence of a prisoner in the state penitentiary.

Order affirmed, stay of proceedings vacated, and record remitted to the circuit court of Stanley county.

Walter Conway, Atty. Gen., and Benj.D. Mintener, Asst. Atty. Gen for plaintiff.

CAMPBELL Judge.

This is an original proceeding in certiorari upon the relation of the Attorney General questioning the jurisdiction of the circuit court of Stanley county, S. D., to make and enter a certain order bearing date April 2, 1934.

All material facts are undisputed and are as follows: On September 7, 1933, one Tennant was informed against in the circuit court of Stanley county for the crime of assault with a dangerous weapon with intent to do great bodily harm.On the same day Tennant appeared in court with his counsel and entered a plea of guilty.The stenographic transcript of the proceedings had at that time shows that the assaulted party also appeared before the court, stated some circumstances in extenuation of Tennant's conduct, requested leniency etc., whereupon the judge said in part as follows: "* * * I don't believe the Court would be justified in letting this man go entirely, but under the circumstances I feel like being lenient with him.I will insert a condition in the sentence that if you or your friends make a showing in the future as to your past and guarantee your future conduct the sentence may be suspended, in the future, but not at this time."The written sentence and judgment of the court was signed and filed on the same day committing Tennant to the state penitentiary for the term of two years, and reciting in part as follows: "This sentence is subject to modification or suspension by the court at any future time."Tennant was immediately conveyed to the state penitentiary, and was receipted for by the warden and started the service of his sentence on September 8, 1933.

Subsequently a showing was made to the circuit court of Stanley county which led the judge thereof to believe that further execution of the sentence imposed upon Tennant should be suspended, and on April 2, 1934, an order was made and entered by said circuit court reciting (subject to certain conditions and restrictions imposed upon Tennant): "* * * That the sentence of this court dated the 7th day of September, 1933 wherein and whereby Ed Tennant was confined to the State Penitentiary at Sioux Falls for the period of two years thereafter be and the same is hereby suspended during the good behavior of the said Ed Tennant; and it is further ordered that the said Tennant be released from the said South Dakota State Penitentiary. * * *"The Attorney General, alleging that the warden was about to comply with said order and release Tennant, instituted the present proceeding for review upon certiorari, contending that such order was beyond the jurisdiction of the circuit court and utterly void.

Section 5175,Rev. Code 1919(as amended, chapter 126,Laws 1925), requires the holding of a regular term of the circuit court in Stanley county annually on the second Tuesday in March and the first Tuesday in October.By statute(sections 2117,4654,Rev. Code 1919)the circuit court is always open for the purpose of hearing and determining all actions, special proceedings, motions, and applications of a criminal nature arising under the laws of this state and of which it has jurisdiction except issues of fact, and (sections 4740,4741,Rev. Code 1919), when any person charged with the commission of a public offense has been held to answer and desires to enter his plea of guilty, an information may be immediately filed and the defendant may be arraigned, enter a plea, and receive a sentence from the judge at chambers at any time with like force and effect as if at a term of the court.It does not definitely appear from the record certified to us whether or not September 7, 1933, when the sentence here involved was imposed, was a day of any regular or special term of the circuit court of Stanley county, nor does such information appear from the record with reference to April 2, 1934, when the suspension order was made.In any event, September 7, 1933, and April 2, 1934, were not days of the same term of said circuit court, since there intervened between them both the first Tuesday in October, 1933, and the second Tuesday in March, 1934, at each of which times the law required the opening of a new regular term of said court.

The effort to empower trial judges to suspend sentence in criminal cases in certain instances originated in this state with chapter 163,Laws 1913, and the history of the matter, including the constitutional amendment of 1930(Const.S.D. art. 5, § 39) and the subsequent enactment of chapter 126,Laws 1931, has been to some extent stated and reviewed in our opinion in the case of State ex rel. Caldwell v. Skinner(1931)59 S.D. 68, 238 N.W. 149.The instant proceeding appears to require the determination of some of the speculations and inquiries suggested but not passed upon in the Caldwell Case.

By way of preliminary, we may state, as a matter of law, that the inclusion in the sentence of September 7, 1933, of the recital, "This sentence is subject to modification or suspension by the court at any future time," neither adds to nor detracts from the situation.A court cannot thus create or reserve power and authority for itself, and we are of the opinion that such recital in the original sentence is mere surplusage and void and ineffective for any purpose.Western Bldg. Co. v. Penney Co.(1932)(S. D.)245 N.W. 909.See, also, Weld v. Weld(1881)28 Minn. 33, 8 N.W. 900;Woods Bros. Const. Co. v. Yankton County.(C. C. A.1931)54 F. (2d) 304.The question is as to the jurisdiction of the court to make and enter the suspension order of April 2, 1934, and the existence of such jurisdiction cannot depend on the recital last above quoted, nor could such recital create a jurisdiction otherwise nonexistent.

The first inquiry for determination is whether the phrase "to suspend sentences of persons convicted," as found in Const. art. 5, § 39, and chapter 126,Laws 1931, has reference to suspending the imposition of sentence or to suspending the execution of sentence after imposition.This same question was suggested under the 1913 law as amended in 1923 but never precisely decided; the 1913 law being held unconstitutional whether the suspension of sentence therein mentioned was intended to mean the suspension of execution of sentence after imposition (State ex rel. Payne v. Anderson[1921]43 S.D. 630, 181 N.W. 839), or the indefinite suspension of the imposition of sentence (Ex parte Dunn[1926]50 S.D. 48, 208 N.W. 224).When the proposed constitutional amendment(chapter 83,Laws 1929), which presently became section 39, art. 5, of the Constitution, was submitted to the people at the November, 1930, general election, there was printed upon the ballot therewith an explanatory statement by the Attorney General(pursuant to section 7216,Rev. Code 1919, as amended bychapter 219,Laws 1921) as follows (italics ours):

"The pardoning power is vested by the Constitution in the Governor.Courts, therefore, have no authority to suspend execution of sentences of conviction, and it is not within the power of the legislature to vest such authority in the courts.

"The purpose and intent of the constitutional amendment is to insert a section in the Constitution to empower the legislature to confer authority upon the courts and the judges thereof to suspend sentences of persons convicted of crime during good behavior.The authority would be limited to the suspension of sentences of persons convicted for the first time under the laws of this state.

"A vote 'Yes' is in favor of a change in the Constitution, as above indicated, and a vote 'No' is in favor of leaving the Constitution as it now exists."

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