Deseret evening news. [volume] (Great Salt Lake City [Utah]) 1867-1920, 1890-01-21
SUSPENDIyG SENTENCE.
The Court; Have Power to do so in
Certain Gases.

5 nehuereo upon the power Of the
) courts to suspend sentence, theq ues-
ton having been raised in the Par.
don Dodds case:
In De Supreme Court orass 7srytto,7,
. Of Uiuhs
| The People of thu Territory Of
Utah, plaintiffs, v. Jehn W. BiseE.
burn. Judge u Inc First District
. Court, defendant.
HENDERSON, 4. J.:
This is an application for writ or
mandate directing the defendant 10
proceed 70 sentence Pardon Dodds
Tor the crime Of voluntary man
slaughter, Of which he stands con-
yleied ia the Finst District Court.
The case is brought to a hearing up
ona return made by the defendant
10 an alternative wri. heretofore L.
sued, from which il appears that in
February, lsSe, the said Pardon
Dodds was indicted for the crime
OF murder; that lie was ar
raigned and pleaded not gull
ty; that in September following
he was put upon trial in the First
District court at Provo, before jury
aud the Hon. John W. Judd, the
then presiding judge. That on the
18th day Of September the jury rem
dered a verdict Of guilty OF volnn-
tary granddaughter. and therenpon
the court, by an Older diiy entered.
APPOINTED October 10th, lSSg, as the
time for passing judgmen! upon
such conviction. ,
On the 10Th day Of October, the
prisoner being present aud Judge
Judd presiding, the district attorney
moved for, judgment and sentence.
and the prisoner, by his coun-
sell moved the court that the
sentence AMI judgment De in
definitely suspended during good
behavior. And thereupon the
court, by an order, entered
In its minutes, reciting that
good and sufficient reasons
being made to appear therefor,
granted the DEFENDANTS motion and !
suspended sentence during good be- |
havior. On the 18th day OF Octo-
Der, Judge Judd having resigned. |
he was succeeded by Judge Black /
burn, the defendant. On the /
2lst day Of October, at sss-
sion of the court then being held I
and Judge Blackburn presiding, the
District Attorney moved the court |
for an order appointing a time for
pronjunclng judgment, which the
court refused and still refuses to pro-
coed 10 sentence.
Upon this record we are asked to
issue mandate to the defendant to
proceed 20 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 errors or want Of proof
10 support them; but this power was
not invoked in this case, and Dodds
stood convicted before the court Of
the crime Of voluntary manslaugh-
ter, by q verdict which was in full
force and effect. After conviction
the trial court may undoubtedly sus-
pend Judgment temporarily for
stated periods from time 10 time. 1t
may be proper 70 do so 10 allow the
Defendant time 10 move for new
trial, TO perfect an appeal, TO present
a petition for pardon, and to allow
the court time 20 consider and de
termiue the sentence to be imposed. I
People rs. Reilly, % Mich, $50:
Wharton's Or. Pr and Pr, sec. 9I3: {
Com. vs.. Dowdrin, us Mass, I3s;
State Is. Addy, Is y. j., l. Il3.
But when defendant stands con-
victed and all the remedies provided 1
by law for testing the correctness Of I
the conviction have been exhausted
or waiFei, we have no doubt it i
the duty Of the court to keep control
Of the case aud within reasonable I
time proceed to give Judgment, and
in doing so to exercise such discre-
ton as the statute governing the {
particular ofiense commits Ia the {
court. The authority to wholly re-
lieve parties from a conviction for
crime is not given 10 the courts, but j
belongs to the parlUnlng power. !
People ". Morrissetts, 20 How. Pr. {
lis; People vs.. Reilly, SO Mich, 100: Z
People vs.. Brown Mich, ) Grim :
NAL Law, Mag. SIS. !
1t is apparent from this record that '
Il was not intended by the court to 5
suspend Judgment, bat [
ln the contrary, to entertain the {
no further and TO dis J
charge the decentralization with {
lut sentence. The statute Com.
Laws. ISIS, section 49,, which pre- a
.cribes the punishment for voluntary c
nanslaughter, the crime for which {
Dodds stood convicted is as follows; '
''NOiuntary msnslsughter is pun
shahle by Imprisonment in the E
lenitentiary not exceeding five =
-ears.o ......
1t will be seen that 10y this statute
he largest discretion is vested in the {
,Ourt. IL extends from a maximum e
Imprisonment ia the penitentiary !
Town to the least appreciabie space y
II time, no minimum being desig- Il
lated- No doubt the legislature, in
this discretion 10 the q
,Ourt, recognized the fact that there o
night be extreme cases where n q
,arty might legally be guilty Of v
he crime, aud yet the circum-
tances be such that the penalty 7
hOHld be purely nominal. or q
curse such n case would u
'e an extreme one, but it can radi- =
y be imaginsl; on the other hand Il
nc case may be such rs to require n
he extreme penalty provided for by a
ne statute. Within these limits, Z
hen, the court in this case was II
to exercise It's discretion. 9
I might have designated n term of II
so brief that the II
'risoner could not have reached the 81
before it expired; or, If Of
lie did, that would have only re- u
uired him 10 lie received and dis ;!
barged. u
we think it Il to be presumed h
rom this record that the 81
earned judge who presided "
{ the trial, and heard all q
he testimony, in his discretion, de- u
srmined that tkis was a case in b.
fhich the lightest penalty which
V law lie was authorized to infiict N
h0uli he imposed; and that being u
urely nominal and requiring OF %
ne officers TO execute II, merely N
duty, and useless ex- u
ense, he refused to pass sentence oi
all. This, we think, is the rea- re
Unable presumption. From this
cord we are TO presume official in =
gritty and prUpriety, rather than pi
ne contrary. No case Is presented in Sc
lis record for reviewing the discre- 60
on OF the court below. II that al
)uld be done. the facts upon which d'
le discretion was exercised are "a
OF before Us. The question pre- as
,nted 10 MS IS whether we shall n
sue pgrempt0ry mandate rtquir- dr
ig the court to proceed 70 inlet ar
IFS penalty. We think not. espec- W
.lly in view of the fact that the al
Tit would require another judge m
ian the one that heard the evil Tn
epce, and presided at the trial 10 al