
    Weber v. State.
    
      Court has power, %n criminal cases, to suspend execution of sentence, and to set aside such suspension.
    
    In a criminal case the court has the power to suspend the execution of the sentence, in whole or in part, unless otherwise provided by statute ; and has power to set aside such suspension at any time during the term of court at which sentence was passed. Whether such suspension can be set aside at a subsequent term is not decided.
    (Decided June 24, 1898.)
    Error to the Circuit Court of Franklin county.
    On May 3, 1897, being at the April term of the court of common pleas of Franklin county, Jacob Weber, the plaintiff in error, plead guilty to an indictment for keeping- a room for gambling, and the court sentenced him to pay a fine of $400.00 and costs, and that he be confined in the county jail for the period of ten days, and to said sentence added the following words: “But execution of the sentence to jail is hereby suspended.”
    Afterwards, at the same term of court, on the 9th day of August, 1897, the court, on its own motion, set aside the suspension of the execution of the sentence of imprisonment for the reason that the said Jacob Weber had violated the conditions of said suspension by engaging in gambling, directly or indirectly, and ordered the sheriff to carry said sentence into execution, and ordered a capias to issue for that purpose.
    The court heard evidence, and a bill of exceptions was taken, setting- out all the evidence introduced and exception taken to the action of the court.
    The circuit court affirmed the proceedings of the court of common pleas, and thereupon a petition in error was filed in this court, seeking to reverse the judgments of the lower courts.
    
      Cyrus Huling, for plaintiff in error.
    The sentence taken as a whole amounts to nothing more than imposition of a fine and the entry was a final one in the ease for that time. It has been held that the court has power to suspend the execution of sentence to imprisonment. Lee v. The State, 32 O. S., 113, and cases there cited. This suspension was not granted at the request of the plaintiff in error and is thereby distinguished from the case of Bvrd v. Cinti., quoted 12 Bulletin, 101.
    If this sentence was not an entire one, if it was a conditional sentence or depended on some contingency, then it was illegal. The judgment though pronounced by the judge is a certain and final conclusion of the law following on ascertained premises and it must not be dependent on any contingency, nor subject to any future decision, but must be unconditional. Archibold Crim. Plead., 8 Ed., page 580; Woodford v. State, 1 Ohio St., 427; Williams v. State, 18 Ohio St., 46.
    But a sentence is indivisible and this sentence having been fully executed so far as ordered by the court it is not subject to revision. Pickett v. State, 22 Ohio St., 405; La/rney v. Cleveland, 34 Ohio St., 599.
    
      Chcvrles W. Yoorhees, prosecuting attorney, and Henry A. Williams, for defendant in error.
    There seems to be no contention in this case as to the right of the court of common pleas to grant a suspension of the execution of the sentence heretofore originally made in this case. In fact, in his argument before the circuit court, counsel for Jacob Weber conceded that the court below had the right to make such an order of suspension. This seems to be elemental. Bishop, on “Criminal Procedure, ” Yol. 1, section 1299; Weaver v. People, 33 Mich., 296 ; People ex rel. Forsythe v. Court of Sessions, 141 N. Y., 288; People v. Bradner, 107 N. Y., 1; 2 Hale, P. C., ch. 58, p. 412. This power belonged of common right to every tribunal invested with authority to award execution in a criminal case, 1 Chitty, Cr. L. 1st ed., 617, 758.
    Without attempting to collate all the authorities on the subject, it is sufficient to say that the power to suspend sentence at common law is asserted by writers of acknowledged authority on criminal jurisprudence, by the .uniform practice of the court and numerous adjudged cases. 2 Hawk, P. C., eh. 51, section 8 ; 1 Bishop’s Cr. Pro., section 1124 ; 4 Bl. Com., ch. 31; People v. Graves, 31 Hun., 382; Peoples. Harrington, 15 Abb., N. C.,161; People v. Whipple, 9 Cow., 715; Carnal v. People, 1 Park Crim. Repts., 262; Commonwealth v. Boiodican, 115 Mass., 136'; State v. Addy, 43 N. J. L., 114; Weaver v. People, 33 Mich., 297; People v. Beiley, 53 id. 260; Commonwealth v. Maloney, 145 Mass., 205; Sylvester v. State, 65 N. H., 193; Gibson v. The State, 68 Miss., 241; States. Crook, 115.,N. C., 760; State v. White, 117 N. C., 804; Bird v. The City of Cincinnati, 12 W. L. B., 101.
   By the Court.

The power to stay the execution of a sentence, in whole or in part, in a criminal case, is inherent in every court having final jurisdiction in such cases, unless otherwise provided by statute. The suspension being in favor of the prisoner, is for his benefit, and is valid whether consented to by him or not. When the suspension is upon conditions expressed in the judgment, the prisoner has the rig’ht to rely upon such conditions, and so long as he complies therewith the suspension will stand.

But when the suspension is without express conditions, as in this case, it is within the power of the court to set aside the suspension at any time during the same term, on its own motion, and to order the sentence to be executed.

Cases cited by counsel are to the effect that the suspension may be set aside at a subsequent term; but this ease does not require us to go to that extent, because here the suspension was set aside at the same term at which sentence was passed.

Judgment affirmed.  