
    David Fults vs. The State.
    Practice. Discretion of courts in suspending execution of jwdgment in criminal cases. The courts of this State have control of their judgments in criminal cases, so far as to suspend the execution thereof on sufficient reason appearing. Aiid if such suspension be had upon application of defendant, it constitutes no error of which he can take advantage. The courts will be presumed to ’ have exercised such dis- ■ eretion iu a proper case.
    EEOM GKUNDY.
    The plaintiff in error, with others, was indicted and convicted in the circuit court of Grundy county, for an affray. He was fined and ordered to be imprisoned for two days. The court, (judge Marchbanks, presiding,) upon application of the prisoner, after the fine was seemed, “and for reasons satisfactory to tbe court,” suspended the execution of the sentence of inprisonment, until the next succeeding term of the court, upon the defendant’s entering into recognizance to appear at the next term and undergo said imprisonment. The defendant duly appeared at the next term in discharge of his recognizance, and upon motion of the Attorney General, he was ordered to be imprisoned in pursuance of the judgment. Erom this order the defendant, thereupon, appealed in error to this court.
    No counsel appeared for the plaintiff in error.
    Sneed, Attorney General, for the State: .
    At common law, the courts have always exercised in their discretion, a right of respite and suspension of sentence in criminal cases, where a manifest necessity existed for such interposition on the part of the court. There is, therefore, no error in this proceeding — as the record assumes the existence of a proper case; and if there be, the defendant surely cannot be allowed advantage of it, as the suspension was granted upon his application, “upon satisfactory reasons appearing to the court.”
    Thus, the judgment of the court in manslaughter, which, before the code of 1829, was branding in the hand, was suspended by the supreme court, “until farther order,” and the prisoner enlarged upon bail. Vide Allen vs. The State, M. & Y., Rep., 294.
    In cases of felony or treason, says Mr. Chitty, no new trial can be granted when tbe proceeding has been regular, but if the conviction appear to the judge to be improper, he may respite the execution, to enable the defendant to apply for a pardon. 1 Chitty Cr. L., 653. 6 Term R., 625, 638. 13 East B., 416.
    Many things might occur, rendering the exercise of such discretion absolutely necessary and imperative upon the court. There are, say this court, many things done and transacted in the circuit courts, as to which from their very nature the supervision of this court would be difficult and could not be made effective. 3 Humph., 167. This court will, therefore, never interfere in matters of discretion, unless palpable injustice has been done. 5 Hump., 569.
    In the case at bar, the defendant sought the respite of his punishment, which the court, “for satisfactory reasons appearing,” granted him. He now seeks to take advantage of his own wrong — and defeat the execution of the law, by assuming that although this act of judicial clemency was granted him on his own request and seeking, yet there is error in it, by which he goes “unwhipt of justice.”
    Upon the authorities cited, and especially Allen's case, it is clearly within the discretion of the courts, to control them judgments in criminal cases, where the interests of public justice and the rights of the prisoner are not affected thereby.
   TotteN, J.,

delivered the opinion of the court.

At January term, 1854, of the circuit court of Grundy, David Fults, with others,' was convicted of an affray. He was sentenced to a fine of ten dollars and two days imprisonment. The fine and costs were secured, and there appears of record the following entry:

“ On motion of defendant, David Enlts, and for reasons appearing to the satisfaction of the court by admission of the Attorney General, and the evidence in the case, he is permitted to enter into recognizance to appear at the nest term of this court and then undergo the imprisonment adjudged against him, and abide by and perform the sentence of the court.”

The defendant gave bail, and at the next term made his appearance before the court. It was thereon ordered that the defendant be imprisoned in accordance with the judgment at the former term, and the defendant appealed in error to this court.

We see nothing irregular in this proceeding to which the defendant can except. There are many cases no doubt, where it is necessary, and proper, to suspend the execution of the final judgment. Eor instance, where the prisoner has become non compos between the judgment and the award of execution; ox, in order to give room to apply to the Executive for a reprieve or pardon, or in special cases, where the necessity and propriety of such course, are rendered evident to the mind of the court. Allen vs. The State, M. & Y., 297 4 Bl. Com., 395.

In Allen’s case it was considered, that a right to petition the Executive for a pardon, was a constitutional right, and as the prisoner was convicted of manslaughter, and sentenced to be branded in the hand, under the law then in force, time was allowed him, until the next term to petition for a pardon. He was also permitted to give bail, the court remarking, “ in common cases, where the party can give bail reasonably, to secure his appearance, that he may be forthcoming and subject to the sentence of the law, is' all that the law requires.”

Now it is true, that the order does not state for what cause the respite was granted. It were better no doubt that the cause be stated, that it may appear to be such as the law will recognize. "We are bound, however, to presume from the silence of the record in this respect, that the respite was granted on sufficient cause, but if it were not, it is clear that the objection is one not to be made by the defendant who takes the benefit of it.

The judgment will be affirmed.  