Show suspending SENTENCE in n the territorial su supreme preme court jan 21 the following decision was rendered upon the power of the courts to suspend sentence the question having been raised in the pardon dodds case in 7 the dw supreme goft of the territory Terr drory of utah the people of the territory of utah plaintiffs vs john W blackburn judge of the first district court defendant A J this is an application for a writ of mandate directing the defendant to proceed proceed to sentence pardon dodds for for the crime of voluntary manslaughter of which he stands convicted in the first district court the casi case to is brought to a hearing upon a return made by the defendant to writ heretofore is sue drom rom which it appears that in february 1889 the said pardon dodds was indicted for the crime of murder that he was ar reigned and pleaded not guilty that in september following 13 he e was put upon trial in the fi first t district court at provo before beffi e ajay a jury r and the ron hon john W judd the then presiding judge that on t atoe he day of september the J jury ury rendered a verdict of guilty of voluntary manslaughter and thereupon the court by an order duly entered appointed october letb 1889 as the time for passing judgment upon such conviction on the day of october the prisoner prisoner being present and judge audd judd presiding the district attorney moved for judgment and sentence and the prisoner by his counsel moved the court that the sentence and judgment be indefinitely suspended during good behavior and thereupon the court by an order entered in its minu teb teh reciting that good and sufficient reasons being made to appear granted the defendants motion and suspended sentence during good behavior on the day of october judge judd having resigned he was succeeded by judge blackburn the defendant on the day of october at a ss sas slon of the court then being held and judge blackburn presiding the district attorney moved the court for an order appointing a time for pronouncing judgment which the court refused and still refuses to proceed to sentence upon this record we are asked to issue a mandate to the defendant to proceed to judgment and sentence ample authority is vested in the court by the statutes of the territory and rules of practice to set aside verdicts tor for errors or want of proof to support them but this power was not invoked in this case and dodds brood convicted before the court of the crime of voluntary manslaughter by a verdict which was in full force and effect after conviction tho the trial court may undoubtedly suspend temporarily for stated periods from time to time it may be proper to do so to allow the defendant time to move for a new nw trial to perfect an appeal to present sent a petition for pardon and to allow the court time to consider and determine the sentence to be imposed d people vs reilly beilly 63 53 mich 26 0 whartons Wh artons cr PI and pr sec corn con vs Dow drin mass state vs addy 43 N J T L but when a defendant stands convicted and all the remedies provided by law for testing the correctness of the 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 proceed to give judgment and in doing so to exercise such discretion as the statute stature 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 vs Morris 20 how pr people vs reilly 63 53 mich people vs brown mich 6 criminal law mag it is apparent from this record that it was not cot intended by the court to temporarily suspend judgments judgment but on the contrary to entertain the prosecution no further and to discharge the defendant without sentence the statute corn com A laws 1888 section which prescribes the punishment for voluntary manslaughter the crime for which dodds stood convicted is as follows voluntary mun manslaughter slaughter is punishable by imprisonment in the penitentiary not exceeding five years f it will be seen that 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 legislature in committing this discretion to the court recognized the fact that there might be extreme cases where a party might legally be guilty of the 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 radi ly 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 exercise 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 have only 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 beard all the testimony in ila his discretion determined ter 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 from this record we are to presume official integrity and propriety rather than the contrary no case to is presented resented in this record for reviewing the disera discretion of the court below 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 this 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 daty of the court in which a conviction is had bad 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 tae record that the court in the exercise of such discretion has determined ter mined that the lowest possible punishment should be ingli inflicted eted the failure of the court to pass judg ment is more a matter of form that than of substance the mandate of this court would only require the performance for mance of a technical duty for for this reason we do not think we are am called upon to interfere by issuing the writ asked for anthe the he writ should be denied zane C J concurs anderson A J concurs |