Summary
In Gabriel v. Brame, 200 Miss. 767, 28 So.2d 581 (1947), the Court in banc, and without dissent, upheld the statute which authorizes a circuit court to suspend a sentence based on conviction for a misdemeanor.
Summary of this case from Whittington v. Stevens, SheriffOpinion
No. 36263.
January 13, 1947.
1. CONSTITUTIONAL LAW. Criminal law. Pardon.
The suspension of sentence statutes are not unconstitutional as being an intrusion upon pardoning power of governor (Code 1942, secs. 2541, 2543; Const. 1890, sec. 124).
2. CRIMINAL LAW.
Punishment for crime has its basis solely in its effect as a deterrent as against future offenses and cannot be predicated upon the concept of punishment for the sake of punishment or for vengeance.
3. CRIMINAL LAW.
Since what constitutes a crime and what punishment shall be inflicted is a legislative question except as to punishment which is cruel and inhuman, Legislature may prescribe not only penalty, but also such conditions as will, in judgment of Legislature, best serve general policy of deterring crime.
4. CRIMINAL LAW.
Legislature has authority to authorize deferment of sentence in its entirety until a subsequent term and to authorize suspension of a part of sentence.
5. CONSTITUTIONAL LAW.
Where court suspended a portion of sentence, fully retaining jurisdiction and keeping convict under bond, so that a subsequent revocation of suspension for commission of another offense was a judicial function and an incident of court's procedural administration, there was no conflict with Governor's constitutional authority to grant reprieves and pardons (Code 1942, secs. 2541, 2543; Const. 1890, sec. 124).
6. CONSTITUTIONAL LAW.
A statute will not be held unconstitutional unless clearly so.
7. COURTS.
Where there has been a long series of uniform decisions asserting same principle and reaching same conclusion upon like facts and where a point lately made was as much involved, fact that point was not raised in prior cases by counsel or stated by court is indicative that point is made without grounds.
APPEAL from the circuit court of Lauderdale county, HON. JESSE H. GRAHAM, Judge.
Harold F. Crain and Cecil A. Rogers, both of Meridian, for appellant.
The summary hearing as evidenced by the record does not constitute due process of law.
The hearing on petition to revoke the suspended sentence was in effect an ex parte proceeding, the appellant not being permitted to seek counsel in violation of Section XIV of the United States Constitution, and Sections 25 and 26 of the Constitution of 1890.
Section 2543, Code of 1942, was violated by not placing a definite time limit as required, but was conditioned "so long as he shall hereafter keep the peace and be of good behavior in the State of Mississippi and not violate any of its laws." The question arising here is one of construction, did the legislature intend a limitation as to time of the trial judge's power over one convicted of a misdemeanor, or was it the intention to allow the judge to hold such person under his power for the remainder of that person's natural life? If the latter, it is unreasonable, arbitrary, capricious and tends to create a dangerous law of men and not of laws.
Montgomery v. State (Ala.), 163 So. 365.
Section 2542 was violated by failure to place a definite time limit as required but was conditioned indefinitely in the future so as to render the suspension void, and as the time of penalty prescribed by the Legislature for the commission of the misdemeanor originally charged has passed, and proceedings under the indictment and the suspension being one and incapable of separation, the proceeding was void in toto and jurisdiction lost.
Dawson v. Sapp, 125 P. 78; Standard Oil Co. of Louisiana v. Porterie, 12 F. Supp. 100; Standard Pipe Line Co. v. Porterie, 12 F. Supp. 105; 33 L.R.A. (N.S.) 115; 42 L.R.A. (N.S.) 249.
Section 2542 is so ambiguous in that portion which states "for a definite time" that its meaning is vague, uncertain and violates due process of law.
Sections 2541, 2542 and 2543 of the Code of 1942 are unconstitutional.
See McLemore v. State, 170 Miss. 641, 155 So. 415; Fuller v. State, 100 Miss. 811, 57 So. 806; Cooper v. State, 175 Miss. 718, 168 So. 53; Vinson v. State, 16 Ala. App. 536, 79 So. 316; Montgomery v. State 231 Ala. 1, 163 So. 365; State ex rel. French et al. v. Stone, County Treasurer, 224 Ala. 234, 139 So. 328; Ex parte Knight, 61 Ala. 482; People v. Brown, 54 Mich. 15, 19 N.W. 571; State of Missouri v. Hockett et al., 129 Mo. App. 639, 108 S.W. 599, 600; Mitchell v. State ex rel. Florence Dispensary, 134 Ala. 392-412, 32 So. 687; People ex rel. Forsyth v. Court of Sessions of Monroe County, 141 N.Y. 288, 36 N.E. 386, 23 L.R.A. 856; United States Constitution, Art. 14, Amendments 5, 6; Constitution of 1890, Secs. 1, 2, 14, 24, 25, 26, 124; 39 Am. Jur. 558, Sec. 63; 8 R.C.L. 252, Sec. 257, p. 253, Sec. 258; 12 C.J. 838, Sec. 322.
Greek L. Rice, Attorney General, by Geo. H. Ethridge, Assistant Attorney General, for appellee.
The appellant challenges the constitutionality of the act of the judge in revoking the suspended part of the sentence, and contends that the statutes under which the judge acted, Sections 2541, 2542 and 2543, are unconstitutional..
In the absence of a statute authorizing the suspending of sentences in misdemeanors, the court had no power to suspend sentence, and where the court, prior to the passage of the statute, undertook to suspend a sentence for a misdemeanor, this Court held that the act of the judge in suspending a portion of the sentence was without authority of law, and that the defendant in such case stood as though he were an escaped prisoner.
See Fuller v. State, 100 Miss. 811, 57 So. 806, Ann. Cas. 1914A, 98, 39 L.R.A. (N.S.) 242, holding that the circuit court had no inherent powers to suspend the sentence, and that it would require a statute to authorize such suspension.
Since the enactment of the Laws of 1914, Chapter 207 thereof, brought forward in the various codes to 1942, being Section 2541 thereof, there has been a general practice to suspend a portion of the sentence in many cases, it being deemed by the Legislature and judges dealing with suspended sentences that suspending sentences resulted in better enforcement of the law and an increased respect for law by means of holding a restraining power over those who had been convicted of misdemeanors.
It will be noted from the sentence originally imposed, a portion of which was suspended under the conditions set forth, that the sentence was within the limit authorized by law. (See Section 2406 of the Code of 1942). Therefore, if no suspension had been made of part of the sentence, the appellant would have clearly been compelled to serve the six months imposed, and pay the fine of $500.00 imposed. If any part of the statute was unconstitutional (which I submit is not) it would be the part that suspended the sentence on the conditions therein named, and the appellant's condition would be similar to that of a man sitting on a limb and sawing the limb between the tree and himself. He would be in a position of bringing down upon himself the full penalty imposed by the court within the limits of the law; and if the judge did not have constitutional power to suspend, he would be in the same attitude as the defendant in the case of Fuller v. State, supra.
In Cooper v. State, 175 Miss. 718, 168 So. 53, it was held that an order revoking suspension of sentence of accused who had pleaded guilty of unlawful possession of intoxicating liquors was not appealable, and was also held that where hearing with respect to revocation of suspended sentence is public and on reasonable notice and evidence is sufficient to convince a reasonable person that the conditions of suspension have been broken, the convicted person has no recourse when the judge revokes suspension except to serve the sentence and pay the fine insofar as theretofore suspended, and in any event a convict has no recourse by appeal, in such case.
In the present case the time for taking an appeal from the conviction of willful trespass had expired, and the right of the convicted person to appeal had ended. Therefore, the suspended part of the sentence which had not been served in this case was upon the plea of guilty, and the time for appeal had expired; and, consequently, he was in the dilemma of being forced to serve the original sentence as imposed and such revocation of the suspended part of the sentence was not appealable. It was a lawful judgment, and habeas corpus does not lie to relieve a person who had been convicted lawfully of crime and a lawful sentence imposed.
McLemore v. State, 170 Miss. 641, 155 So. 415; Cooper v. State, supra; Code of 1942, Secs. 2543, 2815, 2816.
Appellant was in jail on a charge of a burglary committed after the suspended sentence was imposed, and this was clearly in violation of the conditions named in the original sentence of conviction for which the appellant had been originally convicted. The appellant was given notice of the hearing on the revoking of the suspended part of the sentence, and was given an opportunity to be heard or to testify with reference thereto, and he declined to avail himself of the privilege of testifying. The conditions which were imposed upon the appellant in suspending the sentence were certainly reasonable, and calculated to serve the public interest. There is nothing unreasonable in these conditions; the statute leaves it entirely to the circuit judge, or other justices authorized to suspend sentence on conditions, to judge the reasonableness of the conditions imposed in the suspension, and also to judge of whether the conditions have been breached.
Argued orally by Cecil A. Rogers and Harold F. Crain, for appellant, and by Geo. H. Ethridge, for appellee.
At the August 1945 Term of the circuit court of Lauderdale County appellant pleaded guilty to a charge of willful trespass. The penalty for this offense as fixed by Section 2406, Code 1942, is a fine of not exceeding five hundred dollars, or imprisonment not longer than six months in the county jail or both — there being no prescription of a minimum sentence. Acting under the provisions of Section 2541, Code 1942, the court imposed the maximum penalty, but suspended all of it except ninety days in jail, conditioned that the convict would not violate the law in the future. After serving his ninety days, the convict was released under his bond.
On March 16, 1946, the district attorney filed with the court a petition in the nature of an information, under Section 2543, Code 1942, that since his release as aforesaid the convict had been guilty of burglary, and the court was requested to revoke the suspension and to require the remainder of the sentence as imposed to be put into execution. A hearing on this information was had in vacation at which hearing the convict was present, and an order was entered in accordance with the prayer of the information filed as aforesaid.
Upon his reincarceration under the order last mentioned, the convict presented to the court his petition for a writ of habeas corpus on the ground that Sections 2541 and 2543, Code 1942, commonly known as the suspension of sentence statutes, are unconstitutional as being an intrusion upon the pardoning power vested solely in the governor under Section 124, Constitution of 1890. The petition in habeas corpus was denied.
The question presented has been debated in a large number of cases in other states. In a considerable majority of the juridictions the contention here urged by appellant has been rejected, although there is a respectable minority to the contrary. The cases in an adequate number are cited or annotated under State v. Starwich, 119 Wn. 561, 206 P. 29, 26 A.L.R. 393, 399, and Montgomery v. State, 231 Ala. 1, 163 So. 365, 101 A.L.R. 1394, 1402. We concur in what has been held by the majority and that the challenged statutes are not in conflict with the Constitution. See particularly Richardson v. Commonwealth, 131 Va. 802, 109 S.E. 460 and In re Hall, 100 Vt. 197, 136 A. 24.
Two propositions are fundamental, as we think, the first of which is that punishment for crime has its basis solely in its effect as a deterrent as against future offenses — that punishment for the sake of punishment, or for vengeance alone, has no place in the processes of human tribunals. And as a deterrent, a present offender is as much within the object as others in general. And, secondly, that the authority to say what constitutes a crime, and what punishment shall be inflicted, is in its entirety a legislative question, save as to punishment which is cruel and inhuman, and being so, the law-making authority may prescribe not only the penalty but also such incidents and conditions as will in the judgment of the legislature best serve the general policy which is the basis of all criminal sentences.
Such being the plenary power of the law-making body, we suppose it will not be denied that it is within the legislative authority to provide that, in all except nonbailable cases, the court shall not be obliged to impose any sentence at all at the term during which the verdict or plea of guilty is pronounced, but may prescribe that the court, in its discretion, may continue the case to the next succeeding term and thence from term to term, sentence to be imposed at any later term to which the case has been continued for that purpose, at which later term the court may inquire into the conduct of the convict since the date of his conviction in order to furnish further light as to the proper sentence to be imposed.
It must follow, therefore, that inasmuch as the law-making power may authorize the deferment of the sentence in its entirety until a subsequent term, it may authorize the pronouncement of a part of the sentence at the conviction term, with deferment of the remainder, or what is the same thing in practical effect, that the court may pronounce what the trial judge considers is the maximum that he will adjudge in any event and suspend a part of it until a future term, this being necessary under White v. State, 185 Miss. 307, 188 So. 8, in order that the court may deal with it in the future in vacation as well as in term time, under Section 2543, Code of 1943.
In the cases above mentioned the court fully retains jurisdiction of the matter, keeps the convict under bond, so that what it subsequently does in revoking the suspension is in the exercise of a function which, when so authorized by statute, is judicial in its nature and as an incident of the court's procedural administration, McLemore v. State, 170 Miss. 641, 644, 155 So. 415, and trenches not at all upon the constitutional authority of the governor to grant reprieves and pardons.
We believe many of the minority cases have failed to take sufficient notice of the distinction between a case such as we have here and those wherein the court has finally acted and jurisdiction of the matter no longer rests with the court. Such a case was State v. Kirby, 96 Miss. 629, 51 So. 811, which furnished the chief basis for the argument in the controlling opinion in State v. Jackson, 143 Miss. 745, 109 So. 724, dealing with a different statute. This latter case was decided by an equally divided court. It was not cited by either side in the present case. We will say of that case only that we are not in accord with the controlling opinion, but concur rather in the reasoning of the three other judges. Appellant relies strongly on Montgomery v. State, 231 Ala. 1, 163 So. 365, 101 A.L.R. 1394, but an examination of that opinion discloses that it goes back to Haley v. Clark, 26 Ala. 439, wherein the court had imposed a fine which was fully paid and thereafter the court having entirely finished with the matter, the legislature attempted to authorize its repayment.
Finally, we may observe that the statute authorizing suspension of sentences has been in our laws as far back as Chapter 207, 1914, more than thirty years. In hundreds and hundreds of cases the trial courts have availed of its provisions and several of them have been before this Court. And so far as we can find not until now has any constitutional question been raised as to that particular statute. In addition, therefore, to the consideration that a statute will not be held to be unconstitutional unless clearly so, we may regard the situation as one suitable for the application of the observation found in Webb v. Rome, W. O.R. Co., 49 N.Y. 420, 10 Am. Rep. 389, 393, to quote: "Where there has been a long series of uniform decisions, asserting the same principle, and reaching the same conclusion upon facts which are alike, and where a point now lately made was as much involved, the fact that the point has not been raised in any of these cases by counsel or stated by the court is strong support that it is now made without ground." See 15 C.J., p. 942, note 9, and 21 C.J.S., Courts, Sec. 186, pp. 300, 301.
Affirmed.
Sydney Smith, C.J., did not participate in this decision.