
    Ex Parte Steinmetz.
    
      (Decided July 2, 1930.)
    
      Mr. E. 0. Riclcetts, for petitioner.
    
      Mr. R. S. Cunningham, prosecuting attorney, for the State.
   Lemert, J.

This is an action praying for a writ of habeas corpus, wherein the petitioner, Raymond Steinmetz, respectfully represents that he is unlawfully restrained of his liberty by Grail Sesler, sheriff of Fairfield county, Ohio, at the Fairfield county jail in Lancaster, Ohio.

The petitioner represents that on or about October 1, 1929, two indictments for larceny were returned against him in the common pleas court of Fairfield county, Ohio, and that at the January term of said court, to wit, on the 14th day of March, 1930, a plea of guilty was entered on each charge, and thereupon the court made the following finding in each case, to wit:

“The sentence of the Court is that the defendant be fined the sum of $200 and the costs of this prosecution, and that he be confined in the County Jail for a period of thirty days, and both fine and sentence are suspended upon condition that within two days the defendant leave this State, not to return.”

The petitioner claims that the sentence in each case was indefinitely suspended upon consideration wholly extraneous to the legality of the indictments and the proceedings thereon, and that the petitioner was permitted to go at large without entering into a recognizance for his subsequent appearance in court, and thereby and thereupon said prosecutions were ended and said court deprived of any further jurisdiction of both the person and subject-matter.

It is further claimed that thereafter, to wit, on the 18th day of June, 1930, said court made an order setting aside said suspension in each of said cases and ordered the petitioner committed upon the sentences so imposed on the 14th day of March, 1930, without legal authority and in violation of the Ohio Bill of Bights and of the Fourteenth Amendment to the Constitution of the United States.

The petitioner therefore prays that a writ of habeas corpus he issued to the sheriff of Fairfield county, Ohio, and that the petitioner be discharged from such illegal restraint. .

The journal entry placed upon the journal of the common pleas court at the time of sentence is as follows:

“This day came the Prosecuting Attorney on behalf of the State, and the defendant, Raymond Steinmetz, with his counsel, F. M. Acton, also coming. Counsel for the defendant then requested permission to withdraw his plea of not guilty, entered on October 3, 1929, and requested that a plea of guilty be entered. The Court then ordered the plea of not guilty withdrawn and the plea of guilty entered. The Court then asked the defendant if he had anything to say why the sentence of the Court should not be pronounced against him, and, the defendant answering that he had nothing to say other than what he had already said, the Court then made the following finding: ‘The Sentence of the Court is that the defendant be fined the sum of $200 and the costs of prosecution, and that he be confined in the County Jail for a period of thirty days, and both fine and sentence are suspended upon condition that within two days the defendant leave this state, not to return.’ ”

Following the above-designated journal entry, at a subsequent term of the common pleas court in and for Fairfield county, Ohio, the following entry appears :

“It appearing to the Court, on this 3d day of June, 1930, that in the above entitled cause, defendant on the Hth day of March, 1930, was sentenced to pay a fine in the sum of $200 and the costs of this proceeding, and that fie be confined in the County Jail for a period of thirty days, and that both fine and sentence were suspended at request of the defendant and of his counsel and upon his promise to leave the State and not to return, and it being made to appear to the Court that the defendant did not leave the State and had violated the conditions of his sentence and is absent; it is hereby ordered that he be confined in the County Jail until the original fine of $200 and the costs of prosecution be paid, and that he be confined in the County Jail for a period of thirty days.”

The principal question herein is whether or not the court had power to commit the defendant after it had made this order suspending the sentence; and, second, as shown by the journal entry of June 3, 1930.

This brings us to a consideration of the precise point of distinction between the common-law jurisdiction over crimes and the constitutional and statutory jurisdiction of our state. The Constitution creates judicial power, but does not prescribe any jurisdiction in criminal matters. There can be no judicial power without jurisdiction. If the jurisdiction prescribed by statute excludes all judicial power exercised by the judiciary in criminal cases, then the question arises, how can any inherent power be exercised in disregard to statutory penalty and regulations concerning the assessment thereof?

Section 1, Article IY of the Constitution, places judicial power in the several courts, embracing the court of common pleas, the one possessing original jurisdiction in criminal cases.

Section 4, Article IV, of that instrument, also provides that the jurisdiction of the court of common pleas, and of the judges thereof, shall he fixed by law. No jurisdiction in criminal cases is conferred on the common pleas court by the Constitution, and it can exercise none until conferred by law by statute. Stevens v. State, 3 Ohio St., 453; Allen v. Smith, 84 Ohio St., 283, 95 N. E., 829, Ann Cas., 1912C, 611.

Therefore, in deciding the question whether the court in the instant case had inherent power to suspend sentence, the distinction between the judicial power and jurisdiction should be kept in mind. Judicial' power of necessity can be exercised within the scope of jurisdiction, and not beyond it, and comparison of judicial power as exercised within the scope of statutory jurisdiction in criminal cases with that exercised in civil cases will fairly illustrate the distinction sought here to be made. It will show how such power in civil matters is exercised according to the course of common law; whereas, in criminal cases, it is to be exercised without regard to the common law, but strictly in accord with the provisions of the statutes. Having no judicial power in the latter class of cases, except as derived by statutes, courts cannot exercise any power derived from any other source. Common-law crimes and procedure have been abrogated, which takes away all judicial power heretofore existing by common law not now specially provided for by statute. Judicial power in civil cases is largely dependent upon the common law, while in criminal cases it is not governed by the common law at all.

It might be further said that whatever the common law practice might have been, the Legislature of our state has adopted a different method to give persons convicted of crimes the opportunity to reform, by providing a system of parole, and boards to administer the same. In view of the express policy of the legislation of this state, we are inclined to hold that after conviction the trial courts do not have the power to suspend the imposition of sentence indefinitely, or to release the prisoner. In such case, where the court has suspended sentence and has completed its judicial functions, it has voluntarily surrendered all further control over the case and the person.

We do not believe that after sentence has been pronounced in a criminal case the court can, as a matter of leniency to the defendant, suspend indefinitely its execution. In the absence of a permissive statute the indefinite postponement of sentence upon one convicted of crime deprives the court of jurisdiction to pronounce sentence at a subsequent term, and is in effect a discharge of the prisoner, or, in other words, an indefinite suspension of a sentence on conditions is, in practical effect, a conditional pardon. If such power can be exercised by a judge it incorporates into our administration of the criminal law the “Ticket of Leave” system of English procedure, without its surveillance and checks, and places the criminal at the caprice of a judge, subject to be called up for sentence at any time. If the judge can delay sentence beyond one term of court, or for one year, he then no doubt would have the power to extend it for fifteen years or even for life.

A case well in point, as we view it, for a proper decision of the instant case, is People, ex rel. Boenert, v. Barrett, 202 Ill., 287, 67 N. E., 23, 63 L. R. A., 82, 95 Am. St. Rep., 230, wherein it is held that jurisdiction to impose the sentence upon one convicted of crime is lost by permitting him to go at large upon his own recognizance, and taking no further action in the case until after the expiration of several terms of court. It was held in this case that a trial court has no jurisdiction indefinitely to suspend sentence after conviction of crime, or to release the prisoner on parole, when the Legislature has adopted a plan to give persons convicted of crimes an opportunity to reform by providing a system of parole and boards to administer it.

Another important case along the line as to whether or not the court has inherent power to suspend execution of sentence upon consideration wholly extraneous to the legality of the conviction was decided by the Supreme Court of the United States, Ex parte United States, 242 U. S., 27, 37 S. Ct., 72, 61 L. Ed., 129, L. R. A., 1917E, 1178, Ann. Cas., 1917B, 355, wherein the court held that the federal District Court exceeded its power by ordering that the execution of the sentence to imprisonment imposed by it upon plea of guilty be suspended indefinitely during good behavior, upon considerations wholly extraneous to the legality of the conviction.

It is also urged in the present case that the sentence and suspension thereof was at the instance and request of the petitioner, and it is argued that he ought not to be heard to complain now. We do not believe that the doctrine of estoppel has any application here, nor can it be held that the petitioner could waive any requirement respecting the jurisdiction of the court to enter judgment and pronounce sentence. If the court had no power thus to suspend sentence, and to permit the relator to go at large upon his own recognizance, or upon parole, such power could not be conferred by his consent, nor by his express request. Harris v. People of State of Illinois, 128 Ill., 585, 21 N. E., 563, 15 Am. St. Rep., 153; Morgan v. People of State of Illinois, 136 Ill., 161, 26 N. E., 651.

We therefore find and hold that the petitioner’s prayer for a writ of habeas corpus is well taken, and the same is hereby ordered to be issued, and the prisoner is hereby ordered discharged.

Writ allowed.

Sherick, J., concurs.  