Full opinion text
HARPER, J. Appellant was charged with the theft of a horse from O. T. Cline. When tried, he was convicted, and his punishment assessed at two years’ confinement in the penitentiary. There are but two grounds presented in the motion for a new trial; the first being that the evidence is insufficient to support the verdict, and the other is that the court erred in not submitting to the jury, at the request of defendant, the issue as to whether defendant had ever before been convicted of a felony, defendant having requested that he do so under the provisions of the law”as passed by the Thirty-Second Legislature, being chapter 44. The court indorsed on said application refused, because he saw no equities for defendant if he is guilty. Appellant excepted to the action of the court in refusing to submit that issue to the jury. 1. As to the first ground, there is no question but what the horse of Mr. Cline was stolen on the night of the 16th or morning of the 17th of May. Mr. Peak testified: That he was in the livery business at Morgan. That in the month of May, not remembering the date of the month, but on Thursday or Friday of the week, “a boy came to his stable leading the horse stolen from Mr. Cline, and offered to sell the horse to him, and that he recognized the defendant as the same boy that came to his stable with the horse. That he had seen the boy in jail when he was a witness before the grand jury, and recognized him out of two or three others in the jail as the same boy.” J. A. Crawford testified he lived at Morgan, and saw a man leading the horse through an alley to the livery stable, and talked to him; that he noticed closely because of his proposal to sell the horse so cheap, saying: “1 did not see the boy any more after that until I came here as a witness before the grand jury at this term of the court, when I saw him in the jail, and there I took him to be the same party I saw at Peak’s barn with the horses. There could be two men just alike, of course. I looked at him closely in the jail. What attracted my attention to him was the way he acted and maneuvered around and the price he put on the horses, and he was nervous, and seemed to want to go away, and wanted to know too much about where Mr. Peak had gone. To the best of my knowledge, the defendant is the same man I saw at Peak’s stable in Morgan with' the horses, as described. I have no doubt in my own mind; but a man could be mistaken. In my own mind I have no doubt about it.” J. B. White testified that he was constable of the Morgan precinct, and, when Mr. Peak came to him, he went and talked to defendant, saying as well as he remembered it was on Thursday about May 18th when he saw the boy with the horses in Morgan, saying the young man who had the horses looked like defendant. On cross-examination he said he went to the jail for the purpose of identifying the man. There were two other men in jail with defendant, but neither of them resembled the Morgan man, but he thought defendant did resemble him. As to whether he could be mistaken in his identity of the defendant, he said he would not be positive about it. When the marshal of Stephenville went to Morgan to see about the horses, these three witnesses described the young man who had the horses, and from this description the marshal arrested defendant. The horse was stolen at Stephen-ville, and carried to Morgan, a distance of about 50 miles. Defendant offered testimony to show that he was at home in Stephenville on the 15th, 16th, and 17th of May, and went from home to Dublin on the night of the 17th, and two witnesses testify that he spent Thursday the 18th in Dublin. The issue was thus squarely drawn as to whether defendant was the person who stole the horse, the testimony offered by him proving a complete alibi, if the jury had believed it. But under appropriate charges the jury found against him. The testimony offered by the state, as shown above, would justify such finding, and under our judicial system, the jury being the judges of the credibility of the witnesses and the weight to be given their testimony, we never feel inclined to disturb their verdict on an issue of fact where there is evidence to support their finding. Mr. Peak positively identifies him as the man in possession of the stolen horse, and the other witnesses who saw the man at Morgan with the horse support him. 2. As to the other question, that the court erred in refusing to submit to the jury the question as to whether or not defendant had theretofore been convicted of a felony, their finding to be the basis of an application to the trial judge to suspend the sentence under the provisions of chapter 44, Acts 32d Leg., presents a question of some difficulty. Said act reads: “Section 1. That when there is a conviction of any felony in any district court of this state, except murder, rape, perjury, burglary, and burglary of a private residence, robbery, arson, seduction, bigamy, and abortion, the court may suspend sentence upon application made therefor in writing by the defendant when the punishment assessed by the jury shall not exceed five years confinement in the penitentiary; provided, that in no case shall sentence be suspended except when the proof shall show and the jury shall find in their verdict that the defendant has never before been convicted of a felony in this state or in any other jurisdiction. “Sec. 2. The court shall submit the question as to whether the defendant has ever before been convicted of a felony, only upon request in writing by the defendant, and when the issue is raised by the evidence. “See. 3. When sentence is suspended at the request of the defendant no appeal shall lie from the judgment of conviction. “Sec. 4. Upon application for suspension of sentence, the court may hear evidence as to the reputation of the defendant as a law-abiding citizen, and as to whether the defendant has ever been before convicted of a felony, and upon any other matter that may in its judgment enable it to arrive at a proper conclusion; and the suspension of the sentence, or the refusal to do so, shall be wholly within the discretion of the trial court, and the exercise of such discretion shall not be subject to review in any other court; provided that in no case shall sentence be suspended unless the jury recommend it in their verdict. “Sec. 5. When sentence is suspended, the judgment of the court on that 'subject shall be that sentence on the judgment of conviction shall be suspended during the good behavior of the defendant. By the term ‘good behavior’ is meant that the defendant shall not be convicted of any felony during the time of such suspension or any misdemeanor that involves moral turpitude that the court who granted such suspension may deem not good behavior. “Sec. 6. Upon the final conviction of the defendant of any other felony or misdemeanor as provided in section 5 of this act, pending the suspension of sentence, the court shall cause proper process to issue for the arrest of the defendant, if he is not then in the custody of said court, and upon the execution of the capias, and during a term of the court, shall pronounce sentence upon the original judgment of conviction, and shall cumulate the punishment of the first with the punishment in any subsequent conviction or convictions. “See. 7. In any case of suspended sentence, upon the expiration of double the time assessed as punishment by the jury, the defendant may apply to the court, in term time, to have the judgment of conviction set aside; and if it shall appear to the court, upon the hearing of such application, that the defendant has not been convicted of any other felony, and that there is not then pending against him any charge of felony, the court shall enter an order reciting the facts, and that such judgment of conviction be set aside and annulled. After the setting aside of any judgment of conviction as herein provided for, the fact of such conviction shall not be shown or inquired into in any court for any purpose, except in such eases where the defendant has again been indicted for a felony, and in such event such prior conviction may be shown in case the defendant invokes the benefit of this act. “Sec. 8. When sentence is suspended, the defendant shall be released upon his own recognizance, in such sum as may be fixed by the court.” If the law is valid, it appears upon the written request of defendant, when the issue is raised by the evidence, the court shall submit to them the question of whether or not the defendant has theretofore been convicted of a felony. This part of the law seems to be mandatory on the judge, and if the jury find that this is the first offense, and the punishment is for less than five years, it then becomes discretionary with the court as to whether or not he will suspend the sentence. The questions arise, Has the Legislature the authority to confer upon district judges the authority to suspend sentence after a person has been legally convicted of crime? and, Has the Legislature the authority to confer on district judges the. power to extend immunity from punishment under the conditions named in the act? This law not only gives to district judges discretionary power to suspend the sentence of a person after he has been legally convicted of an offense, but also after lapse of time, upon a showing that he has been guilty of no other offense, to set aside the judgment of conviction, thus in terms conferring on them the power to grant pardons to persons convicted of crime. Our Constitution provides in section 11, art. 4: “In all criminal cases, except treason and impeachment, he [the Governor] shall have power, after conviction, to grant reprieves, commutations of punishment and pardons; and under such rules as the Legislature may prescribe he shall have power to remit fines and forfeitures. With the advice and consent of the Senate he may grant pardons in eases of treason, and to this end he may respite sentence therefor, until the close of the succeeding Legislature.” That the Legislature has the power, being the representative bi sovereignty, to confer this power on the courts, cannot be questioned, unless inhibited by the provisions of the Constitution. It specifically confers upon the Governor the authority to pardon, reprieve, and grant commutations of punishment. That the power to suspend the sentence does not conflict with the power of the Governor to grant reprieves is settled by the decisions of the various courts; it being held that the distinction between a “reprieve” and a suspension of sentence is that a reprieve postpones the execution of the sentence to a day certain, whereas a suspension is for an indefinite time. Carnal v People, 1 Parker, Cr. R. 262; In re Buchanan, 146 N. Y. 264, 40 N. E. 883, and cases cited in 7 Words & Phrases, pp. 6115, 6116. This law cannot be held in conflict with the power confiding in the Governor to grant commutations of punishment, for a commutation is but to change the punishment assessed to a less punishment. A pardon, however, is held to be an act of grace proceeding from the power intrusted with the execution of the laws which exempts the individual on whom it is bestowed from the punishment, the law inflicts for a crime which he has committed. This act by its provisions provides that after a person has been legally convicted of a crime, and his sentence suspended under the provisions thereof, upon the expiration of double the time assessed as punishment by the jury, the defendant may apply to the court to have the judgment of conviction set aside, and, if it appears that he has not been convicted of any other offense, the judgment of conviction shall be set aside and annulled, thus giving to the district courts the power and authority to exempt from punishment a person legally convicted of crime, and of which he has been adjudged guilty, and to which our laws affix a penalty. By the act of setting the judgment aside such person would also be restored to all the rights and privileges to which one is entitled who has never been convicted of an offense. In other words, this act of the Legislature grants to such a person an unconditional pardon, although the word “pardon” is not used therein, and this necessarily includes the question, Can the Legislature bestow upon any officer, other than the Governor, the power to grant an unconditional pardon? We have carefully examined the decisions in those states having constitutional provisions similar to our own, and it seems that an unbroken line of decisions hold that the power cannot be granted to any other person/or agency, where the Constitution of the state confers the power on the Governor. In the case of Butler v. State, 97 Ind. 375, it is held: “Article 3 of our state Constitution (section 96, R. S. 1881) distributes the powers of the government into three separate departments, the legislative, the executive, including the administrative, and the judicial, and provides that ‘no person charged with official duties under one of these departments shall exercise any of the functions of another, except as in this Constitution expressly provided.’ Section 17% of art. 5 (section 143, R. S. 1881) confers upon the Governor ‘the power to grant reprieves, commutations, and pardons, after conviction, for all offenses except treason and cases of impeachment, subject to such regulations as may be provided by law.’ It also invests him with ‘power to remit fines and forfeitures, under such regulations as may be prescribed by law.’ There is no express provision of the Constitution providing for the exercise of these powers by any person charged with official duties under the legislative or judicial department. The conclusion seems to be inevitable that in this state the Governor, under such regulations as may be provided by law, has the exclusive power to grant pardons, reprieves, and commutations, and to remit fines and forfeitures. It follows that any legislative enactment which attempts to clothe the courts, or any of the courts, of this state with these powers, or any of them is void as being in conflict with the fundamental law. State v. Sloss, 25 Mo. 291 [69 Am. Dec. 467), was a case arising upon an act of the Legislature attempting to relieve persons from penalties incurred by violations of a certain penal statute. It was held that it was not competent for the Legislature to do this, as it was an invasion of the pardoning power which, by the Constitution of the state, was vested exclusively in the Governor. It was said in that ease: ‘The powers of the General Assembly are not unlimited. All the departments of our government are confined in their operations. They have prescribed limits, which they cannot transcend. The union of the legislative, executive, and judicial functions of government in the same body, as shown by experience, had been productive of such injustive, cruelty, and oppression that the framers of our Constitution as a safeguard against those evils, ordained that the powers of government should be divided into three distinct departments, and that no person charged with the exercise of powers properly belonging to one of these departments should exercise any powers properly belonging to either of the others, except in the instances expressly directed or permitted by the Constitution. Although questions have sometimes arisen whether a power properly belonged to one department of government or another, yet there is no contrariety of opinion as to the department of the government to which the power of pardoning offenses properly appertains. All unite in pronouncing it an executive function. So the framers of our Constitution thought, and accordingly vested the power of pardoning in the chief executive officer of the state.’ In Attorney General v. Brown, 1 Wis. 513, the court said: ‘The policy of our Constitution and laws has assigned to the different departments of the state government, distinct and different duties, in the performance of which it is intended that they shall be entirely independent of each other; so that whatever power or duty is expressly given to, or imposed upon the executive ^department, is altogether free from the interference of the other branches of the government. Especially is this the case, where the subject is committed to the discretion of the chief executive officer, either by the Constitution or by the laws. So long as the power is vested in him, it is to be by him exercised, and no other branch of the government can control its exercise.’ The Legislature of Alabama passed a special act requiring a county treasurer to refund to certain sureties money which they had been compelled by judgment of court to pay as a fine for their principal. In Haley v. Clark, 26 Ala. 439, it was held that the act was an attempt indirectly to remit a fine, and was in conflict with the Constitution. The following language occurs in the opinion: ‘The principal question is whether this act is unconstitutional. By article 4, § 2, of the Constitution of Alabama, the power to remit fines and forfeitures is given to the Governor, and by the second article the powers of the government are divided into three distinct departments— the legislative, executive, and judicial- — and no one of these departments, or person belonging thereto, can exercise any power properly belonging to either of the others, unless expressly directed or permitted by the Constitution. The power to pardon offenses, except in case of treason and impeachment, and to remit fines and forfeitures, being, as we have seen, confided by the fundamental law to the executive branch of the government alone, this power is virtually denied to any other department, and cannot, therefore, be exercised by the Legislature.’ Article 3 of the Constitution of Indiana, while too plain to admit of construction, has in several cases been considered by this court, an'd the law is well settled that constitutional restraints are overstepped where one department of government attempts to exercise powers exclusively delegated to another. Wright v. Defrees, 8 Ind. 298; Waldo v. Wallace, 12 Ind. 569; Trustees, etc., v. Ellis, 38 Ind. 3; Columbus, etc., R. W. Co. v. Board, etc., 65 Ind. 427. Section 50, 2 R. S. 1876, p. 382, and section 1724, R. S. 1881, recognize the power of courts to remit forfeitures of recognizances. We are satisfied such power does not exist in, and that it cannot be conferred upon the courts by the Legislature. Courts may, from inherent powers or those conferred by statute, set aside judgments forfeiting, or upon forfeit ed recognizances, the same as other judgments, for fraud, mistake, inadvertence, surprise, or excusable neglect, or in proceedings for review. But courts have not, nor can the Legislature confer upon them, authority to grant pardons, reprieves, or commutations, nor to remit fines and forfeitures. These powers under the Constitution belong exclusively to the chief executive officer of the state, and they cannot be exercised, directly or indirectly, either by the legislative or judicial department.” In the case of People v. Brown, Mr. Cooley, who wrote the standard work “Cooley on Constitutional Limitations,” while Chief Justice of Michigan, said: “A judge cannot by suspending a sentence indefinitely practically pardon a prisoner.” The Supreme Court of the United States, through Chief Justice Marshall, in the ease of the United States v. Wilson, 7 Pet. 159, 8 L. Ed. 640, says: “The Constitution of the United States gives to the President the power to grant reprieves and pardons for offenses against the United States, as this power had been exercised from time immemorial by the executive of that nation whose language is our language, and to whose judicial institutions ours bears a close resemblance. * * * A pardon is an act of grace proceeding from the power instrusted with the execution of the laws which exempts the individual from the punishment the law inflicts for a crime he has committed.” This act of the Legislature authorizes judges, under conditions named, to exempt from punishment men guilty of crime, and is but an indirect exercise of the power to pardon. The sovereignty of the state is in its citizens. They have assembled in convention and distributed their sovereign power between the departments of government, conferring upon each all the powers they deemed necessary and proper, and to maintain the independence of each department and the distinctiveness of its sphere have declared that no “person or collection of persons, being one of these departments, shall exercise any power properly attached to either of the others, except in the instances herein expressly provided.” The legislative, judicial, and executive departments each received from the people that portion of power that the sovereign citizenship deemed necessary and proper to discharge all the functions of government relating to their respective department and no more, and each is sovereign in the exercise of the powers confided to it, each the equal but not the superior of the other co-ordinate branch of the government. The legislative branch has more extended jurisdiction, and its province is to enact laws for the government and well-being of society, and to make any and all laws wherein they are not inhibited by the Constitution. But further that department cannot go, nor can it invade or exercise the powers conferred upon either of the other departments. The Constitution having conferred upon the executive department the power to grant pardons, this act of the Legislature seeking to confer this power on the district judges of the state is in violation of that provision of the Constitution, and is null and void. There are other features of this law that would in our opinion render it void, but we do not deem it necessary to discuss them here, as it would necessitate making this opinion too lengthy. The law had a humane object, a worthy purpose, and, if it were possible under our Constitution to uphold it, we would be glad to do so, but, deeming it violative of the provisions of the organic law, we hold that the act is void, and the court did not err in refusing to submit the question to the jury. The judgment is affirmed. PRENDERGAST, J. I am inclined to believe the act of the Thirty-Second Legislature quoted in the opinion is constitutional. At least, I have such doubt that X am unwilling to agree to the opinion declaring it unconstitutional.
On Motion for Rehearing. HARPER, J. At the last term of this court this ease was affirmed, and is now pending on a motion for rehearing, appellant insisting that this court erred in holding that chapter 44, Acts 32d Leg., was unconstitutional. Owing to the wide and deep interest taken in this question by invitation of this court, able attorneys, in addition to the learned counsel originally retained, appeared in. behalf of appellant, and at their suggestion more time than usual was granted in which to present the motion for rehearing. After oral argument thereon, again at the suggestion of counsel additional time was granted in which they could present their written briefs, and the written briefs being received so near the end of the term, we carried the case over that we might, during our vacation, give to the questions raised and presented that study, research, and thought which their importance justly entitled them to. Counsel is in error in stating that we held that the trial court could not for any reason suspend pronouncing sentence in a case. In the original opinion we said and held: “That the power to suspend the sentence does not conflict with the power of the Governor to grant reprieves and pardons is settled by the decisions of the various courts.” What we did hold was that the Legislature had no power to confer on the trial court authority to remit the punishment after a conviction had been obtained and penalty assessed by a verdict of the jury; this power being conferred on the Governor by the Constitution, and, if under the guise of “suspension of sentence” this object was sought to be obtained, the act would be void, for the word “suspension” could not be given such construction. Had counsel read and digested the opinion, much that has been written in their briefs would have been unnecessary. Counsel lay down the proposition: “The act of the trial judge in postponing or holding in abeyance the passing of sentence upon a defendant is not, and cannot be a ‘pardon’ or in the nature of a pardon.” And then argue at length the proposition, and cite us the opinion of the Supreme Court of the state of Mississippi in the case of Fuller v. State (Miss.) 57 South. 6, decided recently, and the case of People v. Court of Sessions of Monroe County, 141 N. Y. 288, 36 N. E. 386, 23 L. R. A. 856, and some other cases announcing that a court for good cause shown may temporarily suspend pronouncing sentence on a person adjudged guilty by the verdict of a jury. If this was all the law under consideration did, perhaps counsel’s premise might be well taken. In the Mississippi case the powér of the court to remit the penalty assessed by the jury did not arise, and was not discussed. In that case Puller had been adjudged guilty of the offense with which he was charged by a verdict of the jury. Owing to illness, the judge did not at once pronounce sentence, but permitted the defendant to go at large on his own recognizance. However, at a subsequent term of the court, the court had the defendant brought before him, and sentenced Puller to undergo the penalty assessed. Puller sued out a writ praying for his discharge, alleging that, the court having failed to pronounce sentence at the term at which he was convicted, the court was powerless to pronounce sentence at a subsequent term, and for this reason he was entitled to be discharged. The Supreme Court of Mississippi held against this contention, and required Puller to undergo the punishment assessed against him. Thus it is seen that the opinion in that case passes on no question arising in this case, for the question of the power of the court to remit the penalty and release the defendant from all punishment for the crime of which he had been adjudged guilty did not arise. In the New York case, People v. Court of Sessions, it likewise is not in point, for while that case holds that a court has the inherent power, flowing to it from the common law of England, to suspend sentence, yet it also holds: “The power to suspend the judgment during good behavior, if understood as expressing a condition, upon the compliance with which the offender would be absolutely relieved from all punishment, and freed from the power of the court to pass sentence, is open to more doubt. The Legislature cannot authorize the courts to abdicate their own powers and duties, or to tie their own hands in such a way that, after sentence has been suspended, they cannot, when deemed proper and in the interest of justice, inflict the proper punishment in the exercise of a sound discretion. Nor can the free and untrammeled exercise of this power or the right to pass sentence according to the discretion of the court be made dependent upon compliance with some condition that would require the court to try a question of fact before it could render the judgment which the law prescribes. The statute must not be understood as conferring any new power. The court may suspend sentence as before, but it can do nothing to preclude itself or its successor from passing the proper sentence whenever such a course appears to be proper.” Thus it is seen that the case cited by appellant would render the act in question void, for this act requires the court, after suspending sentence, to try an issue of fact, whether or not he has been guilty of another offense, before it would be authorized to pronounce sentence, and also holds that, if the act contemplated the remission of all punishment, it would be subject to doubt. However, appellant insists that this part of the opinion is but dicta and of no binding force. If it should be said to be dicta in that opinion, certainly it cannot be said to be dicta in the case of People v. Morrisette, 20 How. Prac. 118 (another New York ease), wherein it was held: “I am of the opinion the court does not possess the power to suspend sentence indefinitely in any case. As I understand the law, it is the duty of the court, unless application be made for a new trial, or a motion in arrest of judgment be made for some defect in the indictment, to pronounce judgment upon every prisoner convicted of crime by a jury, or who pleads guilty. An indefinite suspension of the sentence prescribed by law is a quasi pardon, provided the prisoner be discharged from imprisonment. No court in the state has any pardoning power. That power is vested exclusively in the Governor.” While this latter opinion is not from the court of final resort in New York, yet no decision from that state has been cited by appellant, and we.have found none, where under the guise of suspending the sentence the judge had attempted to relieve from all punishment a person adjudged guilty of crime that had been sustained by the court of final resort in that state. The object and purpose of the law under consideration in this case was not to authorize a suspension of sentence as understood and practiced by the courts, but its sole object and purpose is to authorize a trial court to relieve of all punishment a person legally adjudged guilty of crime and whose term of imprisonment had been fixed by the jury in their verdict. In fact, the great weight of authority in the United States is against the authority and power of a court to arbitrarily indefinitely suspend pronouncing sentence, when a person charged with crime has been adjudged guilty by a jury, and some courts have gone to the extent of holding, if the court fails to pronounce sentence at the term at which the verdict was rendered, it was powerless to subsequently pronounce a sentence. In the case of United States v. Wilson (C. C.) 46 Fed. 749, the court held that the trial court, having suspended sentence at the term at which the defendant was convicted, it was powerless at a subsequent term to pronounce sentence. The court says: “The questions for determination are, first, the power of a court to indefinitely suspend sentence, and next to revoke such order of suspension and to proceed to judgment. There can be no doubt of the right of a court to temporarily suspend its judgment, and continue to do so from time to time in a criminal cause, for the purpose of hearing and determining motions and other proceedings which may occur after verdict, and which may properly be considered before judgment, or for other good cause. In this cause, however, the record does not show that the suspension was for any such reason, or for a certain or short time, but, on the contrary, it appears it was for such uncertain time as the defendant should continue to remain so favorably impressed with the laws of the land as to obey them. Instead of this being a mere suspension of sentence, it operated as a condonation of the offense, and an exercise of a pardoning power, which was never conferred upon the court.” In the case of People v. Allen, 155 Ill. 61, 39 N. E. 568, 41 L. R. A. 473, it is held: “Sentence indefinitely suspended upon a plea of guilty cannot be lawfully imposed by the court more than three years afterwards, during which time the defendant has been permitted to go at liberty” — citing a number of authorities, among them being Cobbey on Crim. Law, 390-392, that author stating: “No court has authority to suspend sentence indefinitely against criminals who have been found guilty by a jury or have pleaded guilty.” Judge Cooley, who is recognized as one of the ablest lawyers and writers on limitations of the Constitution, and powers conferred thereunder, when a member of the Supreme Court of Michigan, in the case of People v. Brown, 54 Mich. 15, 19 N. W. 571, held that no judge had the power by suspending sentence of a convicted criminal to relieve him of all punishment; that this would be an invasion of the pardoning power conferred by the Constitution on the Governor. He says: “It is no doubt competent for a criminal court, after conviction, to stay for a time its sentence to give opportunity for a motion for a new trial, or in arrest of judgment, etc., but it was not a suspension of this sort that was requested, it was not a mere postponement, but it was entire and absolute remission of all penalty and the excusing of all guilt.” This he says the court has no authority to do, and for it to attempt to exercise that power would be usurping the functions of the executive of the state, for it, in effect, is the granting of a pardon. In the case of Neal v. State, 104 Ga. 509, 30 S. E. 858, 42 L. R. A. 190, 69 Am. St. Rep. 175, this question is discussed at length, and the authorities collated, both pro and eon, and it is held that a court has no such power, and an attempt to exercise it would be an invasion of the power conferred on the Governor to grant reprieves and pardons. See, also, State v. Voss, 80 Iowa, 467, 45 N. W. 898, 8 L. R. A. 767; In re Markuson, 5 N. D. 180, 64 N. W. 939; In re Webb, 89 Wis. 354, 62 N. W. 177, 27 L. R. A. 356, 46 Am. St. Rep. 846; People v. Blackburn, 6 Utah, 347, 23 Pac. 759; People v. Barrett, 202 Ill. 287, 67 N. E. 23, 63 L. R. A. 82, 95 Am. St. Rep. 230. And in a note to the case of People v. Cummings, 14 L. R. A. 286, the editor, after reviewing the authorities, states that, while criminal courts have at times assumed this power, it must be conceded on a careful review of the authorities that the right of any court to make an indefinite suspension of sentence does not inherently exist in any court. However, even those courts that hold a court may suspend the sentence also hold that the right of the court to subsequently pass sentence must not be abridged, and none we have been able to find hold that a court in suspending sentence may go to the extent of remitting the penalty entirely, except the courts of North Carolina, where it is held that the rule in force in England under what is termed “Prayer of Benefit of Clergy” is part of the American common law, and, in the absence of a statute prohibiting the courts from exercising this authority, the court may change, alter, or remit the punishment even after a defendant has been adjudged guilty by a jury and sentence passed. However, the Supreme Court of that state admits in State v. Crook, 115 N. C. 763, 20 S. E. 514, 29 L. R. A. 260: “We search in vain for direct authority emanating -from the courts of other states to aid us in determining the precise meaning of such orders, because it has not been the practice elsewhere.” However, the courts of that state and the courts of the other states, which hold the courts have the inherent power to suspend sentence, decline to go to the extent that the court by order entered may entirely remit all punishment, and all base this power of suspension upon the custom of the English courts, by whom it was termed a reprieve and who permitted the plea of benefit of clergy to be filed after conviction, but before the punishment had been assessed, and it may be of some interest to take a cursory view of that plea. In the early days of England a person upon trial as to his guilt or innocence was not permitted to introduce any witnesses to prove himself innocent of an offense charged against him, nor in mitigation of the punishment. The crown introduced its evidence to prove his guilt, and, if that testimony showed his guilt to the satisfaction of the jury, they so found. If the court had a doubt of his guilt from the testimony, it could not grant a new trial on that ground, and no appeal was then permitted on this ground. Under this condition the plea of “benefit of clergy” arose. It was first claimed by officials of the church alone, who claimed the right to be tried in the ecclesiastical court. This plea was then permitted to all persons eligible to clerk or other position in the church — that is, all men who could write— and finally broadened to apply to all persons charged with crime. Not being permitted to offer testimony showing his innocence on the trial, nor offer testimony in mitigation of the punishment, after being found guilty by verdict, when granted the “benefit of clergy,” persons adjudged guilty of crime were first permitted in the ecclesiastical court to expurgate themselves, or prove their innocence and offer evidence in mitigation. Eater the courts that tried the cases, after verdict but before assessment of the punishment by sentence, would permit a defendant to introduce testimony in mitigation of the punishment to be assessed by the sentence or judgment of the court, and under this system there grew up the custom of suspending the sentence until the evidence was heard under this plea, so that the court might have the benefit of it in arriving at the punishment he would assess. Upon hearing this testimony the court frequently refused to inflict the death penalty, which was virtually the penalty for all felonies, and would only assess a penalty of burning in the hand to mark the man; later, burning in the face, and still later sentencing the person adjudged guilty to transportation to America or some other point beyond the seas and other penalties. From this power of the courts of England, claimed and exercised in an early day, must we look to any inherent power in a court to ameliorate or relieve any person of punishment adjudged guilty of an offense. In Ohitty’s Crim. Law, the rule at that time is said to have been: “By the common law the prisoner was not even permitted to call witnesses, but the jury was to decide on his guilt and innocence according to their judgment upon the evidence in support of the prosecution. ' And. though the practice of rejecting evidence for the prisoner was abolished about the time of Queen Mary, yet the witnesses could not be sworn in behalf of the prisoner, but were merely examined without any particular obligation, and therefore obtained but little credit with the jury." In his work he recites that Queen Mary in appointing Sir Richard Morgan Chief Justice of the Common Pleas enjoined him “that notwithstanding the error of the old law, which did not admit any witnesses to speak, or any matter to be heard, in favor of her adversary, her majesty being a party, her highness’ pleasure was that whomsoever could be brought in favor of the subject should be heard.” Mr. Blackstone in his Commentaries says that, shortly after the revolution of 1688, among the chief alterations of the law was the “regulation of trials by Jury, and the admitting of witnesses for prisoners under oath.” Other learned commentators and writers of that period could be cited as showing that the “plea of benefit of clergy,” or suspending sentence, was the outgrowth of that condition, when during the trial not only was his mouth closed, but the mouths of all persons who would testify in his favor were also closed, and this plea or suspension of sentence or reprieve as it was called in that day and time was but a way of permitting those who would testify in his favor to be heard in mitigation of the punishment to be assessed, although in the common pleas court on this hearing they were not allowed to dispute the verdict of guilt which had been found by the jury, but the testimony was received alone to aid the judge in passing sentence after the verdict of guilt; and in mitigation of the punishment. But in the beginning and for a long time this plea was not allowed in cases except where the penalty was death, and was never applied to petit theft or misdemeanors. This can have no application to our jurisprudence, for the jury in their verdict fix the punishment as well as pass on the guilt or innocence of an accused person. After it became the law in England that witnesses were permitted to testify on oath in behalf of a defendant on trial of his guilt or innocence, this plea and custom rapidly waned, and by statute it was provided it could not be pleaded in many cases, and finally in 1827 it was wholly abolished, and has not been the rule in that country since that date. Bishop’s Crim. Raw, § 937. Yet we find some trying to work out a theory whereby our- courts would inherit that power from the jurisprudence of England, although it was taken away from the courts of England nearly a century ago, and arose under conditions wholly at variance with our system of jurisprudence. As has been said by judges of eminent ability, the law of the country whose language we speak and of which we once were a part is woven into our judicial history, and should be consulted in the construction of our laws; that the laws of England in 1776 became a part and parcel of our common law in so far as applicable to our conditions, and where not inconsistent with our theory and form of government, and this is undoubtedly true, but, when inconsistent with our system, they have no application. In England the king was sovereign, and in him all power was supposed to rest, and the history of that country for many years, yea, centuries, teaches that a constant war was waged to wrench from him certain power, by grant of charters and by acts of Parliament, guaranteeing to the people certain liberties and certain rights. The. power possessed b'y the courts flowed from the king, and all agencies Of government derived their powers from him, and these powers were exercised in accordance with his wish and will, and, when an exercise of power or authority was sanctioned by him, it was deemed to have the approval of the sovereign power. There were no three separate and distinct agencies of government, wholly independent of each other, with their powers and duties defined by the written law of the land as -with us. English liberties were the growth of ages, while ours sprung into full bloom with the close of the Revolution and the adoption of our Constitution. Then it was that it was recognized and declared that sovereignty resided in the citizenship of the land, and they had the right, authority, and power to create the different agencies of government, and delegate to them such powers as they desired them to exercise. Following the Constitution of the United States, Texas, when it placed the “Lone Star” in the galaxy of stars that form this Union, declared that: “The powers of the government shall be divided into three distinct departments, and each of them be confided to a separate body of magistracy, to wit, those which are legislative to one, those which are executive to another, and those which are judicial to another, and no person, or collection of persons, being of one of these departments, shall exercise any power properly attached to either of the others, except in the instances herein expressly permitted.” In the organic law at that time it was also declared: “In all criminal cases, except those of treason and impeachment, he [the governor] shall have power, after conviction, to grant reprieves and pardons,” etc. And although the Constitution was rewritten in 1861, 1866, 1869, and 1876, with many amendments and modifications adopted at other periods, these two provisions have remained unchanged, except a change in the latter provision giving to the Governor also “the power to commute punishment,” and requiring him to file in the office of Secretary of State his reasons for so doing. Now, what was the power exercised by the English courts under the plea of “benefit of clergy”? It was, after the defendant had been adjudged guilty of the offense with which he was charged, for the court to grant a respite, which was termed a reprieve, and not pronounce sentence until it should be determined from the evidence then to be offered on behalf of the defendant whether the penalty of death should be pronounced or whether a less penalty should be assessed, which is nothing more nor less than exercising the “power to commute the punishment.” and the sovereigns of this state desiring to make it certain that no one except the governor should ever exercise this power, apparently being afraid that as first written the power to “reprieve” might not be ample to stay the hands of the other departments of government, later added in their written Constitution that the power to commute the punishment was vested solely in the Governor, clearly making it known that it was not their wish nor will that the judiciary should ever exercise the power and authority exercised by the English courts under the “benefit of clergy” plea. And, whatever may be said of the power of the judiciary in this respect in other jurisdictions, where the judges assess the punishment and under a different Constitution from ours, the people of Texas in their Constitution took away this power from the judiciary of this state if it otherwise would have been inherited from the English common law. Whatever may be said about the difference of meaning of “suspension” and “reprieve” in this day and time, the power exercised by the English courts under the clergical plea was termed a “reprieve” and so known in law, and it is so termed by Mr. Blackstone in his Commentaries, by Chitty in his Criminal Law, by Lord Coke, Sir Matthew Hale, and the others familiar with the common law, and, while in the statute the word “suspension” may be used, yet if the term is given the same office and effect in law as the word “reprieve” had in the common law, if we seek to justify the power by reference to the common law, then what it purports to do would govern the meaning, and thus .it implied the same as reprieve, when that word. was placed in the Constitution of the United States and the Constitution of Texas. Mr. Blackstone in his Commentaries (page 375, book 4) treats of staying judgment after verdict, and says that a defendant may move in arrest of judgment on account of defective indictment, may plead a pardon in arrest of judgment and by praying the benefit of clergy, and “if all these resources fail the court must pronounce the judgment which the law hath annexed to the crime,” and his whole work teaches that this power of respite, suspension, or reprieve exercised .by the court arose from the plea of benefit of clergy alone. Another difference we would call attention to. Under the common law, and later under the English statute law, there was first tried the guilt or innocence of a person charged with crime, and the trial judge later fixed the penalty, and it was in the sentence pronounced by the judge alone the punishment to be assessed was announced and fixed. In our federal practice this rule is still followed. In, the federal courts a jury is empaneled, and the guilt or innocence of a prisoner is adjudged by them; they having nothing to say as to the punishment to be undergone for the crime. Our federal judiciary, however, is bound down by fixed minimum and maximum punishments that the judge can assess, and this he does in accordance with the circumstances attendant upon the commission of the offense, while under the common law the judge in assessing the penalty was bound within no limits except such as had been established by precedents^ Our judges, under the system of jurisprudence in force in this state, have no such power or authority as is exercised by the federal judges, much less that’ originally exercised by the judges under the common law in England. With us the jury in passing on the guilt or innocence also assess the punishment to be undergone for such offense, if the prisoner is adjudged guilty, and our judges in pronouncing sentence cannot alter nor amend, increase, nor diminish the punishment, but must assess the penalty as fixed by the jury. So the judgment or sentence under the law in our system has not the office of a judgment or sentence under the common law, nor even that of a federal court sentence, as in our first Code it was provided: “They [the jury] in their verdict shall assess the punishment in all cases where the same is not absolutely fixed by law to some particular penalty.” Article 626, Willie’s Texas Code Cr. Proc. 1857. And in this Cede it was also provided that the judge in passing sentence could only assess the punishment as fixed by the jury, and this is now and has always been the law since Texas became a state. So it is seen that the plea of “benefit of clergy,” nor the rules appertaining thereto, has never had any place in our system of jurisprudence, for in the procedure adopted at the same time it was provided that it is only when the Code fails to provide a rule of procedure shall the rules of the common law govern, and not then when inconsistent with the general principles on which the Code of procedure was founded. Article 27, Willie’s Code Cr. Proc. As to why the authors of the Constitutions of 1836 and 1845 and the members of the Legislature of that period so provided, éspecially in regard to this plea of clergy, is perhaps best stated by some of the English law writers, who say that while this plea in its incipieney served a useful and humane purpose, especially so when at that time a defendant was not permitted to offer any witnesses on his trial to prove his innocence or in mitigation of the punishment, however, it finally was productive of perjury, bribery, corruption, and other attendant evils, and for this and some other reasons perhaps equally as potent the plea was finally abolished in that country where it had its origin, and in our country, Mr. Bishop says in his Criminal Law, has been abolished in nearly all the states except North Carolina and some few other states. Section 938. As to the wisdom of the framers of our organic law in giving to one department of government the authority to try offenses and assess the punishment therefor, and to another department, the authority to remit the punishment, perhaps, is not for us to judge or discuss, but only to decide whether or not this. has been done. Yet a careful and thoughtful student of judicial history is bound to recognize that there were many good reasons therefor, and it relieves the judiciary of much importunity, charges of favoritism, if not more serious charges. Another ground equally untenable as the one that the court has the inherent authority by what is termed suspension of sentence to relieve a person legally convicted of crime of the punishment fixed by law, is that the words “after conviction” mean after the sentence has been pronounced, and that the Governor has no right to pardon until the court has pronounced sentence. As authority for this contention, we are cited to the case of Arcia v. State, 26 Tex. App. 193, 9 S. W. 685, and the cases since that time following that decision. Now, what is it the court holds in the Arcia Case? That the question may be clearly presented we copy from that opinion: “But the question here presented is, Had the witness, at the time he was offered as such, been convicted of felony, within the meaning of our Code, sentence not then having been pronounced against him? In the absence of any statutory provisions affecting this question, we would hold, in accordance with what seems to be the well settled rule, that a verdict followed by a judgment renders the conviction complete, and the disqualification at once attaches, but in no case attaches until judgment has been rendered upon the verdict Desty’s Am. Cr. Law, 49b, note 11; 1 Whart. Ev. § 398, note 6. There are, however, some peculiar provisions in our Code, which, we think, require more than a verdict and judgment to be shown, in order to establish a forfeiture of civil rights. Under our Code, in all felony cases, a sentence must follow the judgment. This sentence is distinct from, and independent of, the judgment, and is, in fact, the final judgment in the cause. It must be pronounced and entered in all felony cases, except in a capital case, when the death penalty is assessed, before an appeal can be prosecuted. Code Crim. Proe. 1879, arts. 791, 792, 793. It is the sentence, therefore, and not the judgment, which, under our Code, concludes the prosecution in the trial court, and until it has been pronounced it cannot be said that the conviction in the trial court is complete, so as to work a forfeiture of civil rights.” And it might be added that, if a man appeals, the sentence does not forfeit his civil rights, but the judgment of affirmance by this court. Thus it is seen that the court was not discussing the meaning of the words “after conviction,” as used in the Constitution of 1S45, and in all our Constitutions since that date, nor when the power of the Governor to pardon attached. In that case Judge Willson limits the decision as it affects the civil rights of the person adjudged guilty of crime, and bases it upon the peculiar’ wording of our statutes, and the fact that sentence must now be pronounced before the right of appeal accrues, not only intimating, but stating plainly what he would have otherwise held but for these peculiar provisions-of the Code. When the Constitution with this clause to pardon, to reprieve, was adopted, the law did not require, in fact did not. permit, sentence to be pronounced until after appeal and the judgment of the appellate-court had been rendered. The Code of 185T provided: Article 629: “In every case of conviction for a felony, no judgment shall be entered on the verdict until the expiration of the time allowed for making a motion for a new trial, or in arrest of judgment.” Article 683: “In cases of felony, where an appeal is taken, sentence shall not be pronounced, but shall be suspended until the decision of the Supreme Court has been received.” Article 688: “The only reasons which can be shown on account of which sentence cannot be passed, are: (1) That the defendant has received a pardon from the proper authority. (2) That the defendant is insane.” Thus it is seen that shortly after the adoption of the Constitution of 1845, which authorized the Governor to pardon after conviction, our Code did not contain the “peculiar provisions” referred to by the court in 1888 when the opinion in the Arcia Case was rendered, but the provisions of the Code then followed the procedure then generally recognized of not permitting sentence to be pronounced until after the appellate court had passed on the case, and our Legislature of contemporaneous time gave the words a meaning, not embracing the sentence, for it specifically provided that when called on to state why sentence should not be pronounced, if the defendant presented a pardon from, the proper authority no sentence could ever be pronounced, thus recognizing that these words in the Constitution did not mean after sentence as is now contended by appellant. And the meaning of the words at the time they were placed in the Constitution could not be altered nor amended by any legislation at a subsequent time, as has been frequently decided by this court. Keller v. State, 87 S. W. 675, 1 L. R. A. (N. S.) 489, and authorities there cited. This contemporaneous legislative construction of the meaning of the words “after conviction” is in accord with the meaning of the words as known to the common law, and as adhered to by the great weight of authority in this country, and is in accord with the opinion of this court in the Arcia Case, supra. Under the common law, a person was said to be convicted of the crime when verdict was rendered thereon adjudging him guilty, but not at-tainted (a forfeiture of civil rights) until after the punishment had been assessed by the judgment and sentence of the court. Blaekstone says: “If the jury find Mm [the prisoner] guilty, lie is then said to be convicted of the crime whereof he stands inflicted, which conviction may occur two ways: Either by his confessing the offense and pleading guilty, or by his being found so by the verdict of his country.” 4 Black. Com. 262. The same author says: “The plea of autrefois acquit, or a former conviction for the same identical crime, though no judgment was ever given or perhaps will be (being •suspended by the benefit of clergy or other causes), is a good plea in bar to an indictment.” 4 Black. Com. 336. In 1 Inst. 391, It is said: “The difference between a man at-tainted and convicted is that a man is said convict before he hath judgment; as, if a man be convict by confession, verdict or re-creancie, and when he hath his judgment upon the verdict, he is said to be attaint.” And, further, it is said by the same writer: “So as by conviction of a felon, his goods and chattels are forfeited; but by attainder —that is, by judgment given — his lands and tenements are forfeited and his blood corrupted, and not before.” In Jacob’s Law Dictionary, 163, it is said: “There is a great difference between a man convicted and at-tainted, though they are frequently, though inaccurately, confounded together.” And in the same work it is said: “Convict, convictus — he that is found guilty of an offense by verdict of a jury. Crompton saith that conviction is either when a man is outlawed, or appeareth and confesseth, or is found guilty by the inquest; and when a statute excludes from clergy persons found guilty of felony, etc., it extends to those who are convicted by confessions. 2 Cromp. Just. 9.” “Judgment amounts to conviction, though it doth not follow that every one who is convicted is adjudged.” 2 Cromp. Just. 63, tit. Convict and Conviction. Bishop saj^s: “The word ‘conviction’ ordinarily signifies the finding of the jury, by verdict, that the prisoner is guilty. When it is said there has been a conviction, the meaning usually is, not that sentence has been pronounced, but only that the verdict has been returned. So a plea of guilty by the defendant constitutes a conviction of him.” The same author says: “A conviction, in ordinary legal language, consists of a plea or verdict of guilty, and it is immaterial whether or not final judgment has been rendered thereon.” 2 Bish. Cr. Law, § 903; 1 Bish. Cr. Law, § 963. See, also, on this point, People v. March, 6 Cal. 543; People v. Goldstein, 32 Cal. 433; Blair’s Case, 66 Va. 853; Commonwealth v. Williamson, 4 Va. 211; Shepherd v. People, 24 How. Prac. 388; Commonwealth v. Lockwood, 109 Mass. 324, 12 Am. Rep. 699; State v. Alexander, 76 N. C. 231, 22 Am. Rep. 675; Commonwealth v. Richards, 17 Pick. (Mass.) 296; Nason v. Staples, 48 Me. 125; United States v. Gibert, 2 Sumn. 40, Fed. Cas. No. 15,204; 2 Hawk. P. C. 36, §§ 1, 10; United States v. Watkinds (C. C.) 6 Fed. 153; Bouvier’s Law Diet. verb. “Conviction.” The foregoing references show that the ordinary meaning of the word “conviction” is the verdict of guilty pronounced by a jury. As said by Read, J., speaking for the court in State v. Alexander, supra: “The word is ordinarily used to denote the verdict of the jury, ‘guilty.’ How did the jury find? Guilty; or they convicted him. What did the judge do? Sentenced him to be hanged. This is the language ordinarily used in such matters, both in conversation and in books, law and literary. It is never said that the jury sentenced him nor that the judge convicted him.” 76 N. C. 232, 22 Am. Rep. 675. And in Shepherd v. People, 24 How. Prac. 401, we find the following excerpt quoted approvingly: “In 1 Inst. 391a, it is said: ‘The difference between a man attaint-ed and convicted is that a man is said convict before he hath judgment, as if a man be convict 'by confession, verdict or recusance; and when he hath his judgment upon the verdict he is said to be attaint.” It is further said: “By a conviction of a felon, his goods and chattels are forfeited; but by attainder, that is, by judgment given, his lands and tenements are forfeited, and his blood corrupted, and not before.’ So in Jacob’s Law Diet.