In re Hart for a Writ of Habeas Corpus 29 N.D. 38, 149 N.W. 568

Beuce, J.

(after stating tbe facts as above). Tbe question to be resolved in this case is whether, after an order suspending a jail sentence on which no commitment bas been issued, and six months after tbe period of that sentence bas expired, tbe court which imposed tbe sentence and suspended tbe same may revoke tbe order, and order tbe commitment of tbe defendant, and require her to serve out tbe original jail sentence.

Tbe statute under which tbe sentence was suspended is chapter 136 of tbe Laws of 1913, and reads as follows: “Section 1. Court may suspend or modify sentence, when. In all prosecutions for misdemeanors, where tbe defendant bas been found guilty, and where tbe court or magistrate bas power to sentence sucb defendant to tbe county *42jail, and it appears that the defendant has never before been imprisoned for crime, either in this state or elsewhere (hut detention in an institution for juvenile delinquents shall not be considered imprisonment), and where it shall appear to the satisfaction of the court or magistrate that the character of the defendant and circumstances of the case are such that such defendant is not likely again to engage in an offensive course of conduct, and where it appears that the public welfare does not demand or require that the defendant shall suffer the penalty imposed by the law, said court or magistrate may suspend the execution of the sentence or may modify or alter the sentence imposed in such manner as to the court or magistrate, in view of all the circumstances, seems just and right.”

We are of the opinion that the court had jurisdiction to revoke this order. There can be no doubt that the power “to remit fines and forfeitures, to grant commutations and pardons after convictions, for all offenses except treason and cases of impeachment,” was by § 76 (art. 3) of the Constitution vestéd solely and exclusively in the govern- or; that § 76, that is to say — article 3 of the Amendments — took this exclusive power from the governor and vested it in the board of pardons, of which the governor is a member, and that the sole and exclusive power in such matters now rests in that board. Re Webb, 89 Wis. 354, 27 L.R.A. 356, 46 Am. St. Rep. 846, 62 N. W. 177, 9 Am. Crim. Rep. 702; Snodgrass v. State, — Tex. Crim. Rep. —, 41 L.R.A.(N.S.) 1144, 150 S. W. 162. We realize, of course, that there are some authorities which seem to hold that, prior to the- American Revolution, the English courts exercised a co-ordinate power in such matters, and which seem to argue for a like power in the American courts. If the premise were true, it can, on the ground of analogy, have no application in America, as, prior to the English Revolution and the establishment of the so-called parliamentary idea, the theory, though occasionally com-batted, was consistently adhered to, that the power which was possessed by the courts flowed from the King, that all agencies of government derived their power from him, and that these powers were exercised in accordance with his wish and will, and that when the exercise of power or authority was sanctioned by him it was deemed to have the approval of the sovereign power. Even after the English Revolution, and the establishment of the parliamentary idea, it has been “the King in Par*43liament” wbo bas governed trials. There are not in England, in fact, and never have been, three distinct agencies of government, wholly independent of each other, with their powers and duties defined by the written law of the land, as is the case in America. See Snodgrass v. State, supra; Jenks, Short History of English Law, p. 187. The act of the judge, therefore, was to a large extent that of the sovereign.

Even if this were not the case, however, the premise is itself entirely false from a historical standpoint. Prior to the American Kevolution the English courts never, as a matter of fact, exercised, or presumed to exercise, the powers which are sought to be conferred by the statute in question, and at the time of the English Kevolution, in 1688, and, long prior to the American Kevolution and to the adoption of the American Constitutions, both state and national, had ceased to exercise the powers on the analogy of which the premise and the argument is based. To quote from the opinion in the case of Snodgrass v. State, supra: “In the early days of England a person upon trial as to his guilt or innocence was not permitted to introduce any witnesses to prove himself innocent of an offense charged against him, nor in mitigation of the punishment. The Crown introduced its evidence to prove his guilt, and, if that testimony showed his guilt to the satisfaction of the jury, they so found. If the court had a doubt of his guilt from the testimony, it could not grant a new trial on that ground, and no appeal was then permitted on' this ground. Under this condition the plea of benefit of clergy arose. It was first claimed by officials of the church alone, who claimed the right to be tried in • the ecclesiastical court. This plea was then permitted to all persons eligible to clerk or other position in the church, — that is, all men who could write, — and finally broadened to apply to all persons charged with crime. Not being permitted to offer testimony showing his innocence on the trial, nor offer testimony in mitigation of the punishment, after being found guilty by verdict, when granted the benefit of clergy, persons adjudged guilty of crime were first permitted in the ecclesiastical court to expurgate themselves, or prove their innocence and offer evidence in mitigation. Later the courts that tried the cases after verdict but before assessment of the punishment by sentence, would permit a defendant to introduce testimony in mitigation of the punishment to be assessed by the sentence or judgment of the court; and under this system there grew up *44the custom of suspending the sentence until the evidence was heard under this plea, so that the court might have the benefit of it in arriving at the punishment he would assess. Upon hearing this testimony the court frequently refused to inflict the death penalty, which was. virtually the penalty for all felonies, and would only assess a penalty of burning in the hand to mark the man; later, burning in the face; and, still later, sentencing the person adjudged guilty, to transportation to America or some other' point beyond the seas, and other penalties. From this power of the courts of England, claimed and exercised in an early day, must we look to any inherent power in a court to ameliorate or relieve any person of punishment adjudged guilty of an offense. In Chitty’s Grim. Law, Vol. 1, p. 624, the rule at that time is said to have been: ‘By the common law . . . the prisoner was not even permitted to call witnesses. . . . But the jury were to decide on his guilt or innocence according to their judgment upon the evidence offered in support of the prosecution. And, though . . . this latter practice of rejecting evidence for the prisoner was abolished about the time of Queen Mary, yet the witnesses could not be sworn on behalf of the prisoner, but were merely examined without any particular obligation, and therefore obtained but little credit with the jury.’ In his work he recites that .Queen Mary in appointing Sir Richard Morgan Chief Justice of the common pleas enjoined him ‘that notwithstanding the old error [of the old law], which did not admit any witnesses to speak, or any other matter to be heard, in favor of the adversary, her Majesty being a party, her Highness’s pleasure was that whosoever could be brought in favor of the subject should be heard.’ Mr Blackstone in his commentaries says that, shortly after the Revolution of 1688, among the chief alterations of the law was the ‘regulation of trials by jury, and the admitting of witnesses for prisoners under oath.’ Other learned commentators and writers of that period could be cited as showing that the ‘plea of benefit of clergy,’ or suspending sentence, was the outgrowth Df that condition, when during the trial not only was his mouth closed, but the mouths of all persons who would testify in his favor were also closed, and this plea or suspension of sentence, or reprieve, as it was called in that day and time, was but a way of permitting those who would testify in his favor to be heard in mitigation, of the punishment to be assessed, although in the common pleas court on this hearing they were *45not allowed to dispute the verdict of guilt which had been found by the jury, but the testimony was received alone to aid the judge in passing sentence after the verdict of guilt, and in mitigation of the punishment. But in the beginning and for a long time this plea was not allowed in cases except where the penalty was death, and was never applied to petit theft or misdemeanors. This can have no application to our jurisprudence, for the jury in their verdict fix the punishment, as well as pass upon the guilt or innocence of an accused person. After it became the law in England that witnesses were permitted to testify on oath in behalf of a defendant on trial of his guilt or innocence, this plea and custom rapidly waned, and by statute it was provided it could not be pleaded in many cases’, and finally in 1827 it was wholly abolished, and has not been the rule in that country since that date. Bishop, Grim. Law, § 937. Yet we find some trying to work out a theory whereby our courts would inherit that power from the jurisprudence of. England, although it was taken away from the courts of England nearly a century ago, and arose under conditions wholly at variance with our system of jurisprudence.” See also State v. Voss, 80 Iowa, 467, 8 L.R.A. 767, 45 N. W. 898.

That the order of the trial court suspending sentence in the case at bar would, if construed as petitioner desires it, constitute an invasion of the province of the board of pardons, there can, indeed, be but little question. Ex parte Clendenning, 1 Okla. Crim. Rep. 227, 19 L.R.A.(N.S.) 1041, 97 Pac. 650; Snodgrass v. State, — Tex. Crim. Rep. —, 41 L.E.A.(N.S.) 1144, 150 S. W. 162; Re Webb, 89 Wis. 354, 27 L.R.A. 356, 46 Am. St. Rep. 846, 62 N. W. 177, 9 Am. Crim. Rep. 702; State v. Abbott, 87 S. C. 466, 33 L.R.A.(N.S.) 112, 70 S. E. 6, Ann. Gas. 1912B, 1189. It is to be remembered that the Constitution vests in the board the power both to commute and to pardon. We have no doubt that, following the analogy of the English courts, and as a power which is inherent in the court itself, and certainly under the sanction of the statute, the trial judge can suspend the enforcement of a sentence for a reasonable time in order to allow an appeal to the executive clemency. Beyond this, however, the courts cannot go. The case at bar, in fact, is none other than one in which the court has, under the sanction of the statute, allowed the defendant that opportunity; and although the time that has elapsed between the rendition of the judg-*46meat and the rearrest has been longer than the original sentence, the defendant cannot complain, as the original order was legal, and the failure to sooner seek for the clemency of the board of pardons is due to the delay not of the court, but of the defendant herself. Miller v. Evans, 115 Iowa, 101, 56 L.R.A. 101, 91 Am. St. Rep. 143, 88 N. W. 198; Re Schantz, 26 N. D. 380, 144 N. W. 445; Fuller v. State, — Miss. —, 39 L.R.A.(N.S.) 242, 57 So. 6.

We are not unmindful of the case of Re Markuson, 5 N. D. 180, 64 N. W. 939, and that in it we said: .“We know of no authority which will permit a trial court to postpone from time to time the date at which imprisonment shall go into effect after a valid judgment has been entered, declaring that the imprisonment shall begin at a definite date which is stated in the judgment. The time at which a sentence of imprisonment begins and ends is a matter of the greatest importance, and is so considered by all the authorities. . . . Under § 21, supra, the judgment may be withheld for thirty days upon the terms stated in the statute, and to facilitate a review in the supreme court, but we find m> authority anywhere under which the time of taking effect of a judgment of imprisonment as' originally pronounced may by orders of the trial court be,postponed from time to time for any purpose or under any circumstance.” That ease, however, was handed down in 1895, and long prior to the enactment of the statute which is now before us, which authorizes the suspension of sentences, and which must, if possible, be upheld and be given a construction which will be in accordance with the provisions of the Constitution:

To construe the statute as- granting the power to the trial court to commute a sentence or to pardon the offense would render the statute unconstitutional. To hold that the suspension is indefinite, and only for a reasonable time, and for the purpose of affording the prisoner, if he desires, an opportunity to apply for executive clemency, would render it valid. We so construe it. We hold, indeed, that the statute justifies just such a procedure as was suggested in the Texas court of criminal appeals in Snodgrass v. State, supra. In that case, the court, though' holding a statute to be unconstitutional which sought to confer upon the courts the power “to suspend judgment on conviction during the good behavior, and ultimately to annul the judgment,” expressly said: “A law can be drawn so that if on the trial it appears that it is *47tbe first offense, and tbe evidence convinces tbe judge tbat tbe best interests of society,'of tbe individual, and of tbe state would be served if tbe band of tbe law was stayed and tbe person adjudged guilty be given a cbance to reform, be may recommend to tbe governor a conditional pardon, and we are sure that in every deserving case the recommendation would he complied with by the governor. Tbe people bad tbe confidence in tbe governor to place tbis power in bis bands, and we, too,, have tbe same confidence. Tbe law could require tbat be have tbe court stenographer make a copy of the testimony beard, and require tbe judge to forward it to tbe governor, with bis recommendation, and provide tbat tbe prisoner be not conveyed to tbe penitentiary until tbe governor-bad acted on tbe recommendation. Thus tbe end sought may be reached in a way not violative of our Constitution, and all tbe good features in tbe law be retained.”

Tbe suspension in tbe case at bar is, in effect, nothing more or less than a recommendation to tbe board of pardons, and tbe giving to tbe defendant an opportunity to obtain clemency from that board. Tbe order was made under tbe authority of tbe statute, and therefore does not come within tbe condemnation of tbe case of Re Markuson, 5 N. D. 180, 64 N. W. 939. If tbe defendant has neglected to take advantage of tbe opportunity offered, she has herself only to blame, and cannot complain if tbe order is afterwards revoked.

Tbe writ will be quashed.

SpaldiNg, Cb. J.,

dissenting. I cannot concur in tbe conclusion reached by my associates in tbis case. Tbe result seems to come by reason of a belief tbat no different conclusion can be reached, and avoid a decision tbat tbe statute in question is invalid. To save so bolding, it seems to me tbe court has put an exceedingly strained construction on the meaning and tbe reasons for tbe law. I shall not at length review tbe authorities cited, but on tbis question simply refer to tbe case of Snodgrass v. State, — Tex. Crim. Rep. —, 41 L.R.A.(N.S.) 1144, 150 S. W. 162, on which so much reliance seems to be placed. I am unable to discover tbat it has any application to either tbe law or tbe facts before us.

In effect tbe Texas law wiped out tbe effect of tbe conviction, as well as tbe fact of conviction, and restored tbe party to practically tbe same *48position in society that be bad occupied before tbe conviction, or would bave occupied bad be never been convicted. Tbis is wby tbe Texas statute was construed as working a pardon, if valid. Our statute does not contain any sucb provisions, but, on tbe contrary, when strictly construed, if tbe defendant’s conduct is exemplary, it leaves a sentence banging over bim during tbe remainder of bis life. Tbe better bis conduct tbe more certain it is that bis future must be blighted by a judgment of conviction in a criminal case still suspended over bim. It thus becomes a punishment for good conduct rather than for infractions of law, and tbis only in case of tbe commission of a minor offense. Tbe court may at any time, either with or without cause, revoke its order of suspension and inflict tbe punishment prescribed.

Tbe defendant may not bave sought a suspension of tbe execution of tbe judgment. lie may not bave desired it. Tbe court may, nevertheless, inflict upon bim a punishment far in excess of anything usual or theretofore known in tbe annals of jurisprudence for tbe offense committed. To say tbe least, for a misdemeanor it becomes an unusual punishment. In tbe case at bar tbe record discloses that tbe application for a suspension of execution was made by tbe state, and not by tbe defendant. But tbe Texas case is not authority on tbe further point to which it is cited.

Tbe Texas court in its opinion suggested that a law might be drawn to cover first offenses, providing for a recommendation by tbe judge to tbe governor; that is, a recommendation for a conditional pardon, supported by a copy of tbe testimony taken on tbe trial, and a provision that in sucb case tbe prisoner should not be conveyed to tbe penitentiary until action bad been bad on tbe recommendation of tbe judge. Tbis suggestion of tbe Texas court that a law might be enacted, which by its terms specified that it was for tbe purpose of enabling tbe judge to recommend clemency, and staying execution long enough to enable tbe governor to act, is made a basis of tbe bolding that our statute, which contains none of these provisions, was enacted for tbe purpose only of giving an opportunity to seek executive clemency.

Its very terms refute any sucb assumption. It specifies the reasons for tbe stay or suspension of execution of tbe judgment. They are: If it appears that it is tbe first offense, that tbe character of tbe defendant and tbe circumstances are sucb that tbe offense is not likely to be re*49peated, and, finally, that the public welfare does not require the imposition of the penalty. It does not authorize the suspension of the execution of the sentence for any reason except those enumerated. Furthermore, if any such intention existed, why should the suspension be permitted for a longer period than necessary to enable the party to apply for clemency, the court to make the recommendation, and the pardon board to act ? In no case would a suspension of more than six months be necessary to permit these things to be done. In the case at bar the conviction was had in October; the next meeting of the board of pardons was fixed by law for the 2d day of December following. No application was made for clemency, and none has been made at any of the subsequent meetings of the board. Still further, the record discloses that the execution of the sentence was in fact suspended for an entirely different reason. It was suspended because the defendant was willing to take her departure from the state. It remained suspended for more than a year and until she returned to the state.

For these reasons I cannot concur in the reasoning of the conclusions of my learned brethren on this subject. Neither can I concur in their intimation that, except for imagining that the law were enacted solely with a view to permitting the defendant to apply for executive clemency, it would be unconstitutional. There is a wide difference between the suspension of the execution of sentence, as provided in this statute, and the granting of a pardon or conditional pardon. A pardon is a remission of guilt, and a conditional pardon is one which does not become operative until the grantee has performed some specific act, or which becomes void when some specified event transpires. 1 Bishop, Grim. L. § 914. A remission of "guilt reinstates the offender as nearly as possible in the same condition as he would have occupied had he never been charged with committing the offense. A pardon releases the punishment and blots out of existence the guilt, so that in the eye of the law the offender is as innocent as though he had never committed the offense. It makes him, as it were, a new man, and gives him a new credit and capacity; People ex rel. Forsyth v. Court of Sessions, 141 N. Y. 288, 23 L.R.A. 856, 36 N. E. 386, 15 Am. Crim. Rep. 675. This is not true of the suspension of execution of a judgment. In such case the court in effect says: “This is your first conviction. Your record heretofore has been good. The offense is only a misdemeanor. The circumstances *50surrounding it and your relations to society have been such as to indicate that you are not naturally criminal, and that you are not likely to become a confirmed criminal. From these facts it appears that the welfare of society does not demand that at this time the sentence be executed. The policy of the law is to give every person the greatest opportunity for development that due protection to society will permit him to have. Hence you are put on probation. The court will see whether you are disposed to become a criminal, and whether in fact you are entitled to its consideration and society still be protected. We will, therefore, not execute the sentence until we have an opportunity to note your conduct and learn more of your disposition. Should you be guilty of further infraction of law, and not deport yourself as a good citizen at all times within the period for which the sentence was pronounced, the suspension will be revoked, and you will be required to pay the penalty of the offense which you committed and of which you were convicted.” This does not constitute a pardon, either full or conditional. It does not absolve him from guilt. It is not a remission. It does not restore- to him his rights as a citizen, or wipe out the record of his conviction; the defendant enjoys his liberty outside the walls of the jail, yet he remains under the sentence to which he has been condemned, and may be imprisoned at any time. George v. Lillard, 106 Ky. 820, 51 S. W. 193, 1011.

In my judgment, so long as the statute is construed to not extend the power of suspension beyond the maximum limit of the time for which the defendant was sentenced, by express terms, and does not permit a revocation thereof except within such period, it is valid, and not subject to attack as an invasion of the pardoning power. All that is necessary is to read and construe the statute as applying only to the time during which the sentence would have been running, had there been no suspension. It is then made to harmonize with the modern policy of dealing with criminals for the first time guilty of minor offenses. It gives them an opportunity to prove their worth and that society will not suffer if the full penalty is not executed, and it minimizes the punishment, rather than increases it, as is done by the construction given the statute by my brethren.

Courts do not try criminals and pi-onounee sentence with reference to what the board of pardons may do in the future. They are guided by *51tbe law. Tbe board of pardons is governed by no law. It exercises its functions whenever in its judgment tbe ends of justice bave been met in a given case. When an offender bas served long enough to punish him adequately for the offense committed, and to serve as a warning to others, and thereby protect society, and when at tbe same time be gives adequate evidence of reformation, tbe board of pardons may feel justified in acting favorably. But none of these considerations apply to a court. Its action within certain limits is controlled by tbe law. I am aware that numerous authorities bold that some statutes somewhat similar to tbe one in question provide for an invasion of tbe pardoning power, but I think that in each instance tbe statute was a palpable invasion of that power, or tbe court failed to distinguish between a pardon and tbe suspension of execution of judgment, and did not recognize that there is a marked difference.

Tbe pardoning power in this country is not parallel to that in monarchical countries, where tbe king rules by divine right, and a history of this power in such countries properly sheds but little light upon tbe subject. For a clear, comprehensive consideration of tbe subject of tbe pardoning power in America, see State v. Nichols, 26 Ark. 74, 7 Am. Rep. 600. Because tbe order suspending tbe execution of tbe judgment in this case was not entered until long after tbe expiration of tbe six months for which tbe defendant was sentenced, I am of tbe opinion that tbe writ should be granted. Re Markuson, 5 N. D. 180, 64 N. W. 939, is a direct authority on this subject.

Furthermore, it is not necessary to strain tbe construction to protect tbe offender. Everything that is attempted to be accomplished by this statute can be done by suspending sentence, which tbe court has tbe inherent power to do, as held by nearly all authorities. See People ex rel. Forsyth v. Court of Sessions, supra.