
    Supreme Court—Special Term—Monroe County.
    
      June, 1892.
    PEOPLE ex rel. BENTON v. COURT OF SESSIONS OF MONROE COUNTY.
    Court has No Bight to Suspend Sentence.
    After a court has accepted a plea of guilty it has no right to suspend sentence indefinitely. The statute requiring the imposition of a sentence after a conviction or a plea of guilty is mandatory.
    In such case where a judge has refused to sentence a defendant, a writ of mandamus is the proper remedy to compel him to perform his duty.
    Application by George A. Benton, district attorney of Monroe county, for a writ of mandamus to compel the judges of the. court of sessions of Monroe county to pass sentence upon one John Attridge, who had pleaded guilty to an indictment for larceny in the second degree.
    
      The facts sufficiently appear in the opinion of the special term.
    
      George A. Benton, district attorney, for relator.
    
      H. B. Hallock, for respondents.
   Davy, J.

It appears from the relator’s petition,, presented upon this application, that John Attridge, of the city of Rochester, who was in the employ of Brewster, Crittendon & Company as salesman and collector, wrongfully appropriated to his own use nearly two thousand dollars of the firm’s money, for which crime he was indicted by the grand jury of Monroe county,, in January, 1892, for grand larceny in the second degree. The indictment was sent from the oyer and terminer to the court of sessions of Monroe county, where Attridge was arraigned and pleaded guilty, and was sentenced by Judge Webneb, the presiding judge of said court, to be confined in the Elmira Reformatory until discharged according to law. From this sentence the two justices of the sessions—Fullee and Colby—dissented, holding that sentence should be suspended. Attridge was then remanded to the custody of the sheriff, and subsequently taken, upon a writ of habeas corpus, before Mr. Justice Adams, who held that the sentence imposed by Judge Webneb and dissented to by his associates was illegal, and for that reason the defendant must be remanded to the custody of the sheriff in order that the court of sessions might pronounce a legal sentence. Thereafter, and on the 14th day of March, Attridge appeared in the court of sessions, and the district attorney again moved that he be sentenced. Thereupon Justices Fullee and Colby announced as their decision that' “sentence is suspended during the good behavior of' the defendant,” Judge Webneb dissenting. The return, which is signed by the two justices of sessions, admits all the facts alleged in the petition. Their excuse, however, for suspending sentence is, that when the defendant pleaded guilty there was presented to the court a petition signed by a large number of prominent citizens of Bochester requesting that sentence be suspended, for the reason that the defendant had made good his defalcation ; that he was a young man who had always maintained a good character up to the time of committing the crime for which he was indicted, and that, by suspending sentence, it would probably result in his becoming a good and useful citizen; that, in suspending sentence, they exercised a discretion which they supposed was vested in the court, and that they acted in accordance with the practice and custom of said court since they had been members thereof. Application is now made to this court by the district attorney for a peremptory writ of mandamus requiring the court of sessions to cause the defendant, Attridge, to be brought before it and to impose such sentence upon him as is required by law. So that the principal question to be considered and decided upon this application is whether the court of sessions of the county of Monroe had power to suspend sentence in Attridge’s case during his good behavior; or, in other words, whether the court failed to perform its duty, as required by law, in suspending sentence.

From the statute laws of this state the criminal courts derive their authority and power to prosecute criminals. The Code of Criminal Procedure prescribes the method of conducting trials in criminal actions prosecuted by indictment. The legislature, in adopting this Code, intended to establish a complete system of criminal practice. It provides what proceedings may be taken by the defendant, both before and after indictment. It also provides upon what grounds a motion may be made by the defendant in arrest of judgment (sections 312, 313, 328, 329, 332).

The Penal Code directs what punishment shall be imposed by the court whenever a person is convicted or pleads guilty to a crime for which he has been indicted.

A motion in arrest of judgment is defined by the Code of Criminal Procedure (sec. 467) to be an application on the part of the defendant that no judgment be rendered on a plea or verdict of guilty. This application, however, must be made for some defect which appears on the face of the record (People v. Kelly, 94 N. Y. 527), or on the ground that the defendant has become insane since he was convicted (sec. 481).

The court in which a criminal trial has been had has also ample authority to grant a new trial when a verdict has been rendered against a person by which his substantial rights in some way have been prejudiced (Code of Criminal Procedure, § 465).

After a plea or verdict of guilty, if the judgment is not arrested or a new trial granted, the court must appoint a time for pronouncing judgment (sec. 471).

The time appointed must be at least two days after the verdict, if the court intend to remain in session so long, or, if not, as remote a time as can reasonably be allowed (sec. 472).

At the time appointed, if no sufficient cause be alleged or appear to the court why judgment should not be pronounced, it must thereupon be rendered (sec. 482).

A judgment in a criminal court upon conviction, or a plea of guilty, is the sentence of the court.

Folger, J., in the case of Marks v. People (74 N. Y. 415), says : “ The sentence given by the court upon a conviction in a criminal case is the final judgment.”

■Section 12 of the Penal Code also declares that the several sections of that 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- by law.

The very language of the above sections shows that the legislature meant to impose a positive and absolute duty upon the criminal courts of this state to pass sentence after a person was legally convicted of a crime, unless sentence was stayed for sufficient cause authorized by law.

The application in this case to suspend sentence, or for an arrest of judgment, was not based upon any grounds authorized by the Code. The regularity of the proceedings was not questioned. Bo that, when the defendant pleaded guilty, there was nothing remaining for the court to do except to pronounce sentence.

There is sufficient power in the executive branch of the state government to prevent punishment where punishment ought not to be inflicted. But the courts are not vested with any- such power. The constitution of the state of New York vests the pardoning power exclusively in the governor.

Article 4, section 5, provides that the governor shall have the power to grant reprieves and pardons, after conviction, for offenses, except treason and cases of impeachment, upon such conditions and with such restrictions and limitations as he may think proper.

A pardon is defined by Chief-Justice Mabshall “ as an act of grace, proceeding from the power intrusted with the execution of the laws, which exempts the individual on whom it is bestowed from the punishment the law inflicts for the crime he has committed ” (U. S. v. Wilson, 7 Peters, 159). “ Punishment,” says Mr. Wharton in his Law Lexicon, “ is the penalty for the transgression of the law.”

What the court did in this case was an act of grace, which exempted the defendant from punishment during good behavior. It is contrary to the spirit of our constitution and laws for courts to permit a person who has been convicted of a crime to enjoy privileges and advantages which are denied to others under like circumstances, or that one person should be subject to punishment for a crime, and others, who have committed similar crimes, should be exempt from punishment, during good behavior, because they happen to have influential friends to intercede for them. The object in punishing criminals is not merely to reform them, but to deter them and others from committing like offenses and to protect society. When the legislature prescribed the punishment that must be imposed when a person is legally convicted of a crime, it had in view the well-being, good order, and security of the community.

When a party pleads guilty, or stands convicted of a crime, and all the remedies provided by law for testing the correctness of the conviction have been exhausted or waived, it then becomes the duty of the court to pronounce sentence, and in doing so to exercise such discretion, as to the extent of the punishment, as the statute authorizes the court to exercise in such cases. It is no doubt competent, under the Code of Criminal Procedure, for a court, after conviction, to suspend judgment temporarily to permit the defendant to move for a new trial, or to perfect an appeal, or to allow the court time to consider and determine the sentence to be imposed, or for any other reason authorized by law (People v. Morisette, 20 How. 118 ; People v. Reilly, 63 Mich. 260 ; People v. Brown, 19 N. W. Rep. 571).

It was not a suspension of judgment authorized by the Code that was requested or desired by the defendant or his friends. What was asked of the judges was, that the sentence to be imposed as required by law should be suspended, and that the defendant should be discharged during his good behavior. If such power can be exercised by a court, it incorporates into our. administration of criminal justice a very uncertain systern, and one which places the criminal who has been convicted, or pleads guilty to a crime, at the caprice of the judge, who may permit him to go at large, but subject to being called up for sentence at any time in his discretion. If a court can suspend sentence during good behavior in a case of grand larceny, why may it not in a case of murder ? If it can delay sentence for six months or a year, I do not see why it may not be delayed for twenty years. To sanction the exercise of such power under our form of government and under our system of criminal jurisprudence would be revolting to our sense of justice. The law requiring courts to pronounce sentence in a proper case is mandatory. This imperative duty is imposed upon the court for the protection of the public and to prevent a failure of justice, and when the justices of the session in this case refused to sentence defendant they failed to do what the law plainly required them to do.

The learned counsel for the defendant contends that it has been customary for the courts to suspend sentence in certain cases, during good behavior, from the earliest history of jurisprudence in England and in this country down to the present time. Conceding that statement to be true, I am not aware, however, that custom can abrogate or annul a statute law which requires the courts to impose sentence where a person has been legally convicted of a crime. The mere fact that courts have been in the habit of suspending sentence in certain criminal cases does not establish their legal right to do so.

It was held in the case of Rex v. Mayor and Corporation of Wells (4 Dowl. P. C. 562) that, when a charter is granted by an act of Parliament to a corporation to hold a court for the trial of causes, the disuse of the court for two hundred years and the want of funds to hold it was no answer on application for mandamus commanding them to hold it.

Patterson, J., in granting the writ, says: “I do not think I have any discretion on the subject. Power to hold this court being granted by charter, I do not think the corporation can lay it aside merely on the ground of want of funds, nor on the ground that no court has been held for two hundred years.”

In the case of the King v. Mayor of Hastings (1 D. & R. 148) a similar question arose. The court held that words of permission, in act of Parliament, if tending to promote the public benefit, are always held to be compulsory.

Whenever the law requires a thing to be done, and the public at large are interested in the doing of it, a mandamus will lie to compel the performance of that act. The criminal courts of this state are the people’s courts, who have a right to insist that such courts, in the trial, conviction and sentence of criminals, shall comply with the law, instead of custom. The law requiring judges to impose sentence upon persons legally convicted of a crime is mandatory, and where they refuse to perform that duty a writ of mandamus is the proper remedy to compel performance.

The application for a peremptory writ of mandamus, requiring the court of sessions of Monroe' county to cause the defendant to be brought before it and to impose such sentence as is required by law, is granted.

Note.—The opinion of the court does not cite two recent cases in this state upon the question.

In People v. Graves (2 N. Y. Crim. Rep. 123) the general term of the supreme court in the fourth department decided (1884) that by a suspension of sentence, during good behavior, the court had not lost jurisdiction to sentence the defendant upon a plea of guilty. In this case the sentence was imposed some years after the suspension of sentence.

See especially the authorities cited in the briefs of counsel in this case (2 N. Y. Crim. Rep. 124-126).

That the power to suspend sentence exists was held in People v. Harrington ([court of sessions of Albany county, 1884], 3 N. Y. Crim. Rep. 139).

On conviction of maintaining a nuisance the court suspended sentence on payment of costs so long as the defendant should abate the nuisance. At a subsequent term the court imposed sentence of imprisonment and payment of costs.—Held, void (State v. Addy, 14 Vroom, 113 ; 39 Am. Rep. 547).  