The watchman and southron. [volume] (Sumter, S.C.) 1881-1930, 1911-04-12
Z. S. c., WEDNESDAY, APRIL IL, 1911

tne erect OF his attempt to exercise
such power and the failure to enforce
the sentence OF Imprisonment in
consequence of such attempted sus-
pension was to make the sentence
void and to leave the court powerless
to enforce it at that time.
The opinion continues in part:
critical comment on the numerous
cases decided in The several States on
the subject Of the extent Of the power
OF the trial court to suspend a SEN
tence imposed on a convict would not
be enlightening. They are irrecon-
cilable In their reasoning and conclus-
ions. Some courts hold that under
the common law the trial court has
the power to suspend a sentence i'm
posed, whenever, in the opinion Of
thel court, the ends of justice would
be promoted by the suspension, and
that this power Is unaffected by the
constitutional provisions vesting the
pardonng power in the governor and
requiring that the several departments
OF the government shall be independ-
ent Of each other.
Beyond the common law and un-
der the statute law allowing new trials.
there can be no doubt that the trial
cuort may In its discretion suspend a
sentence which a convict has not COM
menced to serve. pending motion for
new trial either on the minutes Of
the court or on after discovered evil
dence.
This is on the principle that under
the statute the sentence is imposed
subject to the power of the court to
grant a new trial, and the power Of
suspension Of the sentence Is incl
dental to the power to set aside the
conviction and the sentence and to
order new trial. 1t is important to
observe, however, that the exercise
of this power is not demandable as a
matter Of course on notice Of a motion
for new trial. On the contrary the
power is discretionary and to be ex-
ercised with great caution and only
where, pending the hearing Of the
mottaa for new trial, a. prima facie
showing is presented Of merit in the
motion and Of serious hardship to be
expected as result from refusal to
grant the stay. The necessity and
propriety Of great caution in the ex-
ercise Of this discretionary power fol-
lows from the consideration that the
solemn Judgment Of a court after a
jury trial should not be suspended
except for cogent reasons.
Attempts by courts to suspend the
execution of sentence, or to postpone
sentence beyond what is necessary to
preserve the legal rights Of the con-
vict or to make effective the power
Of the court to relieve from hardship
pending motion for a new trial, are
violative Of the constitution as well as
the statute law of the State. It Is a
function Of the legislative branch Of
hte government to afIiX punishment to
conviction of crime subject to the
pardoning power Of the governor. The
legislative power to set punishment
for crime is very broad. and in the
exercise Of this power the general as
sembly may confer on trial judges, if
it sees fit, the largest discretion as to
the sentence to be imposed-as to the
beginning and end Of the punishment
and whether it should be certain or
indeterminate or conditional. But
when the general assembly provides
punishment, the trial court can not
set the provision aside. For example,
the statute has affixed the penalty Of
death to conviction with recon-
mendation to mercy Of the crimes of
murder and rape, and the court is
obliged to sentence the convict to
death.
$50, also, If the statute provides
that the punishment Of some other
crime shall be Imprisonment in the
discretion Of the court for not less
than six months nor more than II
months the court must, on conviction,
actually impose a sentence Of impris-
onment for not less than six months,
to be actually suffered, not to be sus-
pended. Is it not perfectly obvious
that when the court undertakes
suspend such a sentence. either dur
ing good behavior or at its own dis
erection, ii really refuses to enforce
the statute unless it shall at some
future time conclude that 1t is proper
to do so? Is il not equally obVious