State v. Abbott

• Citation: 70 S.E. 6,87 S.C. 466
• Parties: STATE v. ABBOTT et al.
• Decision Date: 02 February 1911
• Court: United States State Supreme Court of South Carolina

70 S.E. 6

87 S.C. 466

STATE v. ABBOTT et al.

Supreme Court of South Carolina

February 2, 1911

Appeal from General Sessions Circuit Court of Spartanburg County; W B. Gruber, Special Judge.

Ed. L Abbott and another were convicted of gaming, and they appeal. Affirmed.

C. P Sims and H. E. De Pass, for appellants. J. C. Otts, Sol., for the State.

WOODS J.

Under a plea of guilty to an indictment for gaming against the defendants, Ed. L. Abbott and Frank Dearman, the following sentence was imposed by the Honorable R. O. Purdy, Presiding Judge, at the July term of the court of general sessions for Spartanburg county: "It is the sentence and judgment of the court that the defendants, E. L. Abbott and Frank Dearman, do each pay a fine of sixty dollars, and do each perform hard labor upon the public works of Spartanburg county for one year, or each be imprisoned in the jail of said county, or the state penitentiary, at hard labor, for one year. Upon the payment of the fine imposed above this sentence will be suspended as to either or both defendants paying their fines, respectively, as to imprisonment during the good behavior of the defendants, respectively."

The defendants paid the fines imposed, and have since been at large. In July, 1910, orders were made by Hon. W. B. Gruber, Special Judge, reciting that it had been made to appear to the court that the defendants had violated the terms on which the sentence of imprisonment was suspended, and requiring the defendants to show cause "why the stay as to the sentence heretofore imposed should not be revoked and said sentence fully enforced." By their return, the defendants first took the position that there was nothing before the court to show that they had violated the condition on which the sentence had been suspended. Thereafter the court took testimony tending to prove that the defendants, since the sentence was imposed, had again violated the statute against gambling. As a further return, and as a ground for arrest of judgment, the defendants took the position that Judge Purdy had no authority to suspend the sentence during good behavior, and that the effect of his attempt to exercise such power, and the failure to enforce the sentence of imprisonment in consequence of such attempted suspension, was to make the sentence void, and leave the court powerless to enforce it at this time.

Critical comment on the numerous cases decided in the several states on the subject of the extent of the power of the trial court to suspend a sentence imposed on a convict would not be enlightening. They are irreconcilable in their reasoning and conclusions. Some courts hold that under the common law the trial court has the power to suspend a sentence imposed, whenever in the opinion of the court the ends of justice would be promoted by the suspension, and that this power is unaffected by the constitutional provisions vesting the pardoning power in the Governor, and requiring that the several departments of the government shall be independent of each other. People v. Court of Sessions of Monroe County, 141 N.Y. 288, 36 N.E. 386, 23 L. R. A. 856; Weber v. State, 58 Ohio St. 616, 51 N.E. 116, 41 L. R. A. 472. Other courts deny that the judge of a trial court possesses such discretionary power to suspend sentence unless the power be conferred by statute. Gray v. State, 107 Ind. 177, 8 N.E. 16; Miller v. Evans, 115 Iowa, 101, 88 N.W. 198, 56 L. R. A. 101, 91 Am. St. Rep. 143; Neal v. State, 104 Ga. 509, 30 S.E. 858, 42 L. R. A. 190, 69 Am. St. Rep. 175; In re Markuson, 5 N. D. 180, 64 N.W. 939; In re Webb, 89 Wis. 354, 62 N.W. 177, 27 L. R. A. 356, 46 Am. St. Rep. 846; United States v. Wilson (C. C.) 46 F. 748; People v. Barrett, 202 Ill. 287, 67 N.E. 23, 63 L. R. A. 82, 95 Am. St. Rep. 230. The Supreme Court of the United States, in Pointer v. U. S., 151 U.S. 419, 14 S.Ct. 419 (38 L.Ed. 208), referred to the question, but in the following language reserved its opinion: "It is necessary, however, in order to avoid any misapprehension, to say that this court must not be understood as expressing any opinion upon the question suggested by the words of that order, whether a court of the United States, in the absence of authority conferred by statute, has the power, after passing sentence in a criminal case, to suspend its execution indefinitely, and until the court in its discretion removes such suspension. A decision of that question is not necessary to the disposition of this case upon its merits."

It seems to us clear that trial courts had no such general and unlimited power at common law. The common-law rule is thus stated by Blackstone: "A reprieve (from reprendre, to take back) is the withdrawing of a sentence for an interval of time whereby the execution is suspended. This may be first, ex arbitrio judicis, either before or after judgment, as where the judge is not satisfied with the verdict, or the evidence is suspicious, or the indictment is insufficient, or he is doubtful whether the offense be within clergy; or sometimes if it be a small felony, or any favorable circumstances appear in the criminal's character, in order to give room to apply to the crown for either an absolute or conditional pardon. These arbitrary reprieves may be granted or taken off by the justices of gaol-delivery, although their session be finished and their commission expired; but this rather by common usage than of strict right." 4 Blackstone, Com. Ch. XXXI; 2 Hale's P. C. 412. At common law there was no appeal, the trial court had no power to grant new trials in cases of treason and felony, and the punishments were often by branding or other physical infliction; and hence the temporary suspension of the sentence which would otherwise be fully suffered was necessary, to the end that the convict might not suffer the penalty without having an opportunity to apply for pardon or other relief provided by law. On this principle of implied power arising from necessity, it was held in this state to be within the power of the court to postpone until the next term of the court the imposition and execution of the sentence of burning in the hand provided by law, so that the convict might apply to the Governor for a pardon. State v. Frink, 2 Bay, 168. But the common-law power to suspend sentence has been expressly held in this state to be limited by this principle of necessity, as having application only to cases where, but for a suspension, the convict would irretrievably lose some legal right. State v. Chitty, 1 Bailey, 379.

Beyond the common law and under the statute law allowing new trials there can be no doubt that the trial court may in its discretion suspend a sentence which a convict has not commenced to serve, pending a motion for a new trial either on the minutes of the court or on after-discovered evidence. This is on the principle that under the statute the sentence is imposed subject to the power of the court to grant a new trial, and the power of suspension of the sentence is incidental to the power to set aside the conviction and the sentence and to order a new trial. It is important to observe, however, that the exercise of this power is not demandable as a matter of course on notice of a motion for a new trial. On the contrary, the power is discretionary and to be exercised with great caution, and only where, pending the hearing of the motion for a new trial, a prima facie showing is presented of merit in the motion, and of serious hardship to be expected as a result of a refusal to grant the stay. The necessity and propriety of great caution in the exercise of this discretionary power follows from the consideration that...