
    The People ex rel. George A. Benton, District Attorney, Resp't, v. The Court of Sessions of Monroe County, App'lt.
    
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed January 18, 1893.)
    
    Criminal law—Courts have no power to suspend sentence after plea OF GUILTY.
    Criminal courts have no power to suspend sentence after a plea or verdict of guilty, except for causes stated in the Code. It is not sufficient cause to show that the prisoner had previously borne a good character ; that he was sorry for his offense and had made money restitution, or that his punishment would be a sore affliction to himself and to the members of his family.
    Appeal by the defendant, the court of sessions of Monroe county, from a final order made and entered at special term, in Rochester, on the 6th day of July, 1892, directing a peremptory writ of mandamus to issue out of the court, directed to the defendant, commanding that the defendant cause to be brought before it the body of one John Attridge, and impose sentence upon him, on his plea of guilty to an indictment for grand larceny in the second degree.
    
      H. B. Hallock, for app’lt;
    
      George A. Benton, for resp’t.
    
      
       Affirming 46 St. Rep., 255.
    
   Macomber. J.

One John Attridge was indicted by the grand jury of the Monroe oyer and terminer, in January, 1892, for grand larceny in the second degree, in that, while in the employ of the firm of Brewster, Crittenden & Co., as salesman' and collector, he wrongfully appropriated to his own use the sum of $2,000 of the firm’s money. The case having been sent for trial to the court of sessions of Monroe county, the prisoner was arraigned and pleaded guilty to the indictment. Thereupon, the county judge of Monroe county, presiding at the court of sessions, pronounced judgment against -the accused and sentenced him to confinement in the Elmira Reformatory until discharged by law. The court, however, was composed, in this instance, of the county judge and two justices of sessions. Both of the latter dissented from the sentence as pronounced by the presiding judge. The prisoner, having been remanded to’ the custody of the sheriff, was subsequently discharged upon a writ of habeas corpus issued by a justice of the supreme court, who decided that the sentence imposed by the county judge was not legal, because it was not by a majority of the court, and, for that reason, remanded the prisoner to the custody of the sheriff in order that the court of sessions might pronounce a legal sentence.

On the 14th day of March, 1892, the prisoner appeared again in the court of sessions, when the district attorney renewed his motion that judgment be pronounced. The .justices of sessions announced as the decision of the majority of the court, that sentence would be suspended during the good behavior of the defendant. The county judge dissented.

There is no conflict in respect to the facts of this case. The justices of sessions appear to have acted, in part at least, upon a petition signed by sixty-nine citizens of the city of Rochester, men •of high character and representing nearly all professions and businesses, requesting that sentence of the accused be suspended, for "the reason that he had made restitution to his employers of all the moneys embezzled by him, and that, in the judgment of the petitioners, an opportunity should be given to him to lead a better life without the disgrace of confinement and punishment in a penal institution.

Though the accused, after being discovered in his embezzlements, had departed the state, he voluntarily returned into the state and the jurisdiction of its courts, but after proceedings had been instituted for his extradition. It is claimed for him, however, that having become penitent he determined to return and give himself up to justice of his own notion.

The accused is a young man of twenty-two years of age, having a wife and child to support, and was of previous good character. These and other circumstances stated in the petition to the court, as well as matters doubtless within the knowledge of a majority of the court, appealed strongly for leniency, in this particular instance, with a view of enabling this young man, during a course of good behavior, to redeem his character as far as possible from the stain placed upon it. There are probably not many judges of •experience who have not, under like circumstances, and in the ■like hope of redeeming youth from criminal ways, assumed the •existence in criminal courts of this prerogative, and have suspended judgment after conviction, and who have witnessed flowing therefrom no evil, but good alone. Our observation leads us to believe that, assuming such discretionary power to exist, there has not been in practice such an abuse of it as to call for rebuke or animadversion. The case of the accused appeals strongly for the exercise of such discretionary power.

If such power existed under our criminal laws, the order appealed from should be reversed and the prisoner allowed to go upon his own recognizance, until such time as he should violate the conditions imposed upon him.

But we are constrained to say that our criminal laws permit of the exercise of no such discretion. Section 12 of the Penal Code is as follows:

“ The several sections of this Code, which declare certain crimes to be punishable as therein mentioned, devolve a duty upon the court authorized to pass sentence to determine and impose the punishment prescribed.”

Section 471, of the Code of Criminal Procedure, provides: “ After a plea or a verdict of guilty, or after a verdict against the defendant on a plea of a former conviction or acquittal, if the judgment be not arrested or a new trial granted, the court must appoint a time for pronouncing judgment.” And § 482 provides “ If no sufficient cause be alleged or appear to.the court why judgment should not be pronounced, it must thereupon be rendered.”

Section 483 of the Code of Criminal Procedure provides that, “ where a discretion is conferred upon the court as to the extent of the punishment,” it may hear, in a summary way, facts in aggravation or mitigation of the punishment.

These provisions of the Codes require the criminal courts, after a conviction of the accused "person upon a verdict or upon a plea of guilty, to fix and prescribe the punishment and pronounce judgment at a time to be named by the court.

Section 471 of the Code of Criminal Procedure, above quoted, does not contemplate a case where “no sufficient cause can be alleged ” why the court should not pronounce judgment, except such cause or cáuses as have a legal bearing upon the guilt of the accused, or such as may first be brought to the attention of the court alter such conviction, as, for instance, arresting the judgment for the various causes stated in the Code, or an order granting a new trial. It is not sufficient cause to show, as was done in this instance, that the prisoner had borne a good character before this accusation was made against him ; that he was sorry for his offense and had made money restitution, or that his punishment would be a sore affliction to himself and to the members of his family ; these things commonly attend the conviction of all persons for crimes.

We are unable to find anything in the criminal laws of this state permitting the criminal courts thus tq exercise a quasi power of pardon after conviction.

It follows, therefore, that the order directing a peremptory writ of mandamus to issue, directing the court of sessions of Monroe county to bring before it John Attridge and to pronounce judgment against him, should be affirmed.

Order appealed from affirmed, and a peremptory writ of mandamus directed to be issued.

Dwight, P. J., and Lewi J., concur.  