
    PEOPLE OF THE TERRITORY OF UTAH, Complainant, v. JOHN W. BLACKBURN, Respondent.
    Criminal Law. — Suspending Sentence. — A court.has power to suspend sentence after a defendant has been convicted, for stated periods from time to time for good reasons, but it is no doubt the duty of the court where the remedies known to the law are exhausted, to proceed to sentence within a reasonable time.
    Criminal Law. — Mandamus..—District Judge. — On an application for a mandamus to compel the district judge of the first district to proceed to sentence a defendant theretofore convicted in that court, upon whom sentence had been indefinitely suspended, where it appears that the said defendant was convicted of voluntary manslaughter, and when called for sentence, the judge had suspended sentence upon him indefinitely, and the punishment prescribed by statute was not exceeding five years, held that it would be presumed that the judge in suspending sentence intended to impose only a nominal penalty, making the passing of sentence a mere form, and that mandamus would not issue'to compel a judge other than the one who had tried the case and suspended sentence, to proceed to sentence the defendant.
    Petition for a writ of mandamus in the supreme court.
    
      Mr. Charles S. Varían, U. S. Attorney, for the complainant.
    
      Mr. W. H. Dickson, and Messrs. Thurman, Sutherland and King for the respondent.
   Henderson, J.

This is an application for a writ of mandate directing the defendant to proceed to sentence one Pardon Dodds for the crime of voluntary manslaughter, of which he stands convicted in the first district court. The case is brought to hearing upon a return made by the defendant to an alternative writ heretofore issued, from which it appears that in February, 1889, the said Pardon Dodds was indicted for the crime of murder; that he was arraigned, and pleaded not guilty; that in September following be was put upon trial in tbe first district court at Provo, before a jury and tbe Honorable JOHN W.” Judd, tbe then presiding judge; that on tbe 26tb day of September tbe jury rendered a verdict of guilty of voluntary manslaughter, and thereupon tbe court, by an order duly entered, appointed October 10, 1889, as tbe time for passing judgment upon such conviction. On tbe 10th day of October, tbe prisoner being present, and Judge Judd presiding, tbe district attorney moved for judgment and sentence; and tbe prisoner, by bis counsel, moved tbe court that sentence and judgment be indefinitely suspended during good behavior; and thereupon tbe court, by an order entered in its minutes, reciting tbe good and sufficient reasons were made to appear therefor, granted tbe defendant’s motion, and suspended sentence during good behavior. On tbe 15th day of October Judge Judd having resigned, be was succeeded by Judge BlaoebuBN, tbe defendant. On the 21st day of October, at a session of court then being held, and Judge BlACKbubN presiding, tbe district attorney moved the court for an order appointing a time for pronouncing judgment, which tbe court refused, and still refuues to proceed to sentence. Upon this record we are asked to issue a mandate to tbe defendant to proceed to judgment and sentence.

Ample authority is vested in tbe court by tbe statutes of tbe territory and rules of practice to set aside verdicts for errors or want of proof to support them; but this power was not invoked in this case, and Dodds stood convicted before tbe court of tbe crime of voluntary manslaughter by a verdict which was in full force and effect. After conviction tbe trial court may, undoubtedly, suspend judgment temporarily, for stated periods, from time to time. It may be proper to do so to allow tbe defendant time to move for a new trial, to perfect an appeal, to present a petition for pardon, and to allow tbe court time to consider and determine tbe sentence to be imposed. People v. Reilly, 53 Mich. 260, 18 N. W. Rep. 849; Whart. Crim. Pl. Sec. 913; Com. v. Dawdican, 115 Mass. 133; State v. Addy, 43 N. J. Law, 113. But when a defendant stands convicted, and all the remedies provided by law for testing tlie correctness of thé conviction have been exhausted or waived, we have no doubt it is the duty of the court to keep control of the case, and within a reasonable time to proceed to give j udgment, and in doing so exercise such discretion as the statute governing the particular offense commits to the court. The authority to wholly relieve parties from a conviction for crime is not given to the courts, but belongs to the pardoning power. People v. Morrissette, 20 How. Pr. 118; People v. Reilly, 53 Mich. 260, 18 N. W. Rep. 849; People v. Brown, Mich. 19 N. W. Rep. 571. It is apparent from this record that it was not intended by the court to temporarily suspend judgment, but, on the contrary, to entertain the prosecution no further, and to discharge the defendant therefrom without sentence. The statute (Comp. Laws 1888, Sec. 4457) which prescribes the punishment for voluntary manslaughter, the crime for which Dodds stood convicted, is as follows: “Yoluntary manslaughter is punishable by imprisonment in the penitentiary not exceeding five years.” It will be seen by this statute the largest discretion is vested in the court'. It extends from a maximum imprisonment in the penitentiary down to the least appreciable space of time; no minimum being designated. No doubt the legis-latiire, in committing this discretion to the court, recognized the fact that there might be extreme cases where a party might legally be guilty of a crime, and yet the circumstances be such that the penalty should be purely nominal. Of course, such a case would be an extreme one, but it can readily be imagined. On the other hand, the case may be such as to require the extreme penalty provided for by the statute. ..Within these limits, then, the court, in this case, was authorized to exercire its discretion. It might have designated a term of imprisonment so brief that the prisoner' could not have reached the penitentiary before it expired or, if he did, that would only have required him to be received and discharged. We think it is to be presumed from this record that the learned judge who presided at the trial, and heard, all the testimony, in his discretion determined that this was a case in which the lightest penalty which by law he was authorized to inflict should be imposed; and, that being purely nominal and requiring of the officers to execute it a merely perfunctory duty and useless expense, he refused to pass sentence at all. This, we think, is the reasonable presumption. Prom this record we are to presume official integrity and propriety, rather than the contrary. No cause is presented in this record for reviewing the discretion of the court below. If that could be done, the facts upon which the discretion was exercised are not before us. The question presented to us is whether we shall issue a peremptory mandate requiring the court to proceed to inflict the penalty. We think not, especially in view of the fact that the writ would require another judge than the one that heard the evidence and presided at the trial to pass the sentence. While we have no doubt, as before stated, that it is the duty of the court in which a conviction is had to proceed to judgment within the limits prescribed by law for the exercise of its discretion, and that it cannot rightfully exercise the pardoning power by refusing judgment, but that, where the statute prescribing the punishment for a crime only fixes a maximum punishment, thereby expressly authorizing the court, in its discretion, to fix any degree of punishment from such maximum down to a purely nominal punishment, and it is apparent from the record that the court, in the exercise of such discretion, had determined that the lowest possible punishment should be inflicted, the failure of the court to pass judgment is more a matter of form than substance. The mandate of this court would only require the performance of a technical duty. For this reason we do not think we are called upon to interfere by issuing the writ asked for. The writ should be denied.

ZANE, C. J., and Andeeson, J., concurred.  