The Madison daily leader. [volume] (Madison, S.D.) 1890-current, 1921-08-27
CIRCUIT JUDGES
CAN'T SUSPEND
SUPREME COURT HOLDS POWER
CONFINED TO EXECUTIVE
BRANCH OF STATE GOV
ERNMENT.

Sioux Falls. Aug. 27.-The state
supreme court, in a recent decision
has added a considera BILE help TO the
law enforcement forces, and the ef-
feet Will 90 far 10 encourage those
who have been charged with the
punishment of law violators.
The opinion was handed down by
Justice Whiting, in an action
brought by Attorney General Payne.
on a writ of review, asking the SUI
preme court to determine the right
OF a circuit judge TO suspend sentence
already passed upon a person con-
victed of crime under the laws OF
this state. and part of the sen
tence having already been served.
Judge Frank Anderson of the fifth
cult and D. F. Stevens, clerk of
courts in Roberts county were made
defendants in the action.
Justice Whiting says in part:
This is an original proceeding By
the attorney general TO review the
action of a judge of the circuit
court. From the record certificate
TO this court. il appears that ON Hau-
gen was convicted of a felony, and
that upon such conviction. he was,
by the defendant judge. sentenced
10 a term in the penitentiary,o ,of this
state; that several months after such
sentence and while Haugens was
serving same. the defendant did ex
ecute and cause TO be filed and re-
corded. as a record of his court, one
certain instrument purporting to be
an order suspending the said sen
tence for an indefinite period, name
lv. so long as said Haugen should
comply with certain conditions spe-
Gifted in said writing. II is TO re-
view the validity of such order NJ
suspension that this proceeding was
brought.
Has the circuit the right 10 sus-
pend criminal sentence after the
same has been imposed Section
1868 of the revised code provides
that: "All courts having Jurisdiction
to try offenses under the laws of this
state. and the judges thereof. shall
have power TO suspend sentences OF
persons convicted of crime under the
laws of this state. during good be-
havior, subject to such conditions as
the court or Judge thereof may i'm
pose"
The constitution of this state pro-
vides in Article thereof, that: The
powers of the government OF the
state are divided into three distinct
departments. the legislative. exeeu-
tive and judicial: and the powers
and duties of each are prescribed by
this constitution. Section 5, article
of the constitution confers upon
the governor The power 10 remit
fines and forfeitures. to grant re-
prieyes, combinations and pardons
after conviction"
Ii viii thus be seen that the par
doning power is vested in the chief
executives; il is now. as it always
has been deemed TO be, executive
function. II therefore needs no ar
gument TO support the proposition
that if the above section of our sta
tutes was intended TO confer the par
doning power upon the court or the
judges thereof. such statute is, 10
that extent unconstitutional. The
practically unanimously, and certain
ly the overwhelmingly. and certain
ly the overwhelming weight of au-
thority is. that the power 70 indefin-
itely postpone the execution of
criminal sentence partakes of the ma
tur,e and is in effect the pardoning
power, and therefore cannot be con-
ferred upon a judicial branch OF
goernment under a constitution such
as ours"