This cause was heard on questions of law raised by a petition for writ of habeas corpus. In the Superior Court John J. Gouvia, the petitioner, on June 4, 1923, pleaded nolocontendere to a criminal complaint charging him with the unlawful possession of intoxicating liquors. Thereupon he was sentenced by a justice of said court to pay a fine in the sum of one hundred dollars, to pay all costs of prosecution and to be committed to the State jail in the county of Providence until sentence be performed in all its parts. Immediately upon the imposition of the sentence the execution thereof was, by order of the court and with the consent of the Attorney General and of said Gouvia, suspended until June 12, 1923, and Gouvia, the petitioner, was told by the court to pay the fine to the clerk of the Superior Court on or before said date. On June 13, 1923, it appearing that the petitioner had not paid said fine, said justice issued a writ of capias commanding the sheriff and his deputies to apprehend the petitioner and bring him before the Superior Court. After the petitioner was taken into custody but before he was brought before the Superior Court this court issued its writ of habeas corpus directed to Sanford E. Kinnecom, the deputy sheriff
having, by virtue of said capias, the custody of the petitioner. Said deputy in accordance with the commands of said writ brought the petitioner before this court. The petitioner's personal recognizance was, taken and the case was assigned for hearing.
The petitioner contended that the Superior Court was without legal authority to make the order suspending the execution of said sentence and, by permitting the petitioner to depart, lost jurisdiction to enforce said sentence.
Did the court, by staying execution of the sentence for eight days, lose jurisdiction to enforce the sentence? In some jurisdictions it is held that an indefinite postponement of sentence, as for example, during the good behavior of the defendant, deprives the court of jurisdiction to sentence at a subsequent term and is in effect a discharge of the prisoner; and in many other jurisdictions, even where the subject is not regulated by statute, the indefinite postponement of sentence being for the benefit of the prisoner and with his express or implied consent, it is held that the court can pronounce sentence against him whenever he violates the condition attached to the suspended sentence. In the case before us the court did not suspend sentence indefinitely but suspended execution of the sentence for a limited time with the consent of the petitioner and for the apparent purpose of giving him an opportunity to obtain the money with which to pay the fine. The petitioner relies upon Ex parte United States, 242 U.S. 27, to support his contention that the Superior Court was without authority to suspend the execution of his sentence. The defendant in the latter case pleaded guilty before a district court of the United States to the charge in the indictment against him and was sentenced to imprisonment in the penitentiary for five years. At the time the sentence was imposed the court, at the defendant's request, ordered that the execution of the sentence be suspended during the good behavior of the defendant. On application to the United States Supreme Court for writ of mandamus to compel the judge of said district court
to set aside the order suspending the execution of said sentence the court held that an indefinite suspension, being the legal equivalent of an absolute and permanent refusal to impose any sentence, was beyond the power of the court and ordered that the writ issue at the end of the term of court and sooner at the request of the United States. The court did not hold either that it was or was not beyond the power of courts to temporarily suspend until a definite time, the execution of sentences. The opinion quotes at length from Hale's Pleas of the Crown (Vol. 2, Chapter 58, P. 412) from which authority it appears that a practice of temporarily staying of sentence for crime was followed, especially in capital cases, by the courts of England where there was no appeal as a matter of right from a conviction for crime. In this country it has been held in a few jurisdictions to be an inherent power of courts, in the absence of a statute forbidding the practice, to suspend, for a definite period or indefinitely, the execution of a sentence. See Statev. Drew, 75 N.H. 402; People v. Goodrich, 149 N.Y. Sup. 406;Weber v. State, 58 Ohio St. 616. In many states the subject is regulated by statute.
It is clear that the legislature has not conferred upon the courts of this state the power to suspend execution of sentences. Whether the Superior Court has the right to suspend for a brief and definite period the execution of sentences it will be unnecessary, for the determination of the case before us, to decide for, conceding that the Superior Court, in suspending the execution of the sentence, exceeded its legal power, the petitioner's contention that said court, by reason of the suspension lost jurisdiction to enforce the sentence is opposed to the better reason and the great weight of authority.
In the Matter of Hinson, 156 N.C. 250, it appears that at the time the defendant was sentenced to serve eight months in jail the trial judge ordered the clerk not to issue a capias to take defendant to jail until after fifteen days and at the same time told the defendant that if she would
leave the county she would not be required to serve the sentence. Defendant returned after eight months and was committed. It was held; that absence for eight months was not equivalent to serving the sentence and that the court had not lost jurisdiction to enforce the sentence. The court said: "The Judge might in his discretion have passed judgment to begin at some future time (S. v. Hamby, 126 N.C. 1066) as, for instance, to begin fifteen days after the adjournment of the court."
In State v. Drew, 75 N.H. 402, the county solicitor agreed that that part of the sentence that required imprisonment might be suspended. The court attached to the record of sentence a memorandum as follows: "Mittamus to issue at the call of said solicitor." At the request of said solicitor mittamus was issued and the defendant was committed after the time when the sentence would have been served if defendant had been committed at the time of sentence. The court, holding that the commitment was legal, said: "Concede that the court had no authority to suspend the sentences, and the fact still remains that it had power to impose them; and as the two parts of the order are separate and distinct, the illegality of the last part would in no way effect the validity of the first part. Sylvester v.State, supra." (65 N.H. 193, 20 A. 954) "That is, if the part of the court's order complained of were illegal, the part of which no complaint is made would still be valid, and it would be the duty of the court to enforce it; for, as was said in a recent case Petition of Moebus, (73 N.H. 350, 352), ``The sentence of the law is to be satisfied only by the actual suffering of the imprisonment imposed, unless remitted by death or by some legal authority.'"
In Fuller v. State, 100 Miss. 811, the court held; that the power to suspend the execution of a sentence during good behavior had not been conferred upon any court in the state by the constitution or statutes, and that, as such power was not essential to the existence of courts, they have no such inherent power. The court said: "That
portion of the judgment which directed ``that the jail sentence be suspended during the good behavior of the defendant' was void, and the defendant could have been taken into custody immediately upon the rendition of the judgment. The postponement of his imprisonment was presumably with his consent, for it does not appear that he at any time requested, as he had the right to do, to be taken into custody, and consequently he can not now object to being called upon to serve it. ``Consensus tollit errorum',Gibson v. State, 68 Miss. 241, 8 South, 329. It is immaterial that a longer period of time than that for which appellant was sentenced has elapsed since the sentence was imposed. While at large under this void order, to which he did not object, appellant was in the same situation that he would have been had he simply escaped from custody. In such case the sentence is not satisfied until it has been actually served." The opinion was approved in Hoggett v. State, 101 Miss. 269. See also Peoplev. Goodrich, 149 N.Y. Sup. 406; Weber v. State, 58 Ohio St. 616; In Re Collins, 8 Cal.App. 367; Gibson v. State,68 Miss. 241; Miller v. Evans, 115 Iowa, 101; State v. Hatley,110 N.C. 522; Fults v. State, 34 Tenn. 232; Whitney v.State, 74 Tenn. 247; Ex parte, United States, 242 U.S. 27 and cases cited.
The prayer for relief is denied and the cause is set down for further action by this court on Monday, July 2, 1923, at nine o'clock A.M., Standard time, at which time the petitioner is hereby ordered to appear and abide the final order of this court.