In re Lujan

¶1OPINION OF THE COURT.

¶21 The power to suspend the execution ■of a sentence in a felony case, is conferred upon the District Courts of the State by sec. 1, chap. 32, S. L. 1909. 'The order of suspension in this case, however, was made prior to the enactment of the statute, and petitioner’s application for his release from the. custody of the warden •of the State penitentiary is predicated upon the assumption that the District Court, when it sentenced petitioner^ upon his plea of guilty, in the absence of a statute so •authorizing, had not the power to provide “that if thé ■defendant shall forthwith remove himself from the Territory of New Mexico, the commitment hereunder shall not issue so long as he shall remain absent from the Territory of New Mexico.” If it be conceded that the Court had the power to make the order, suspending the execution ■of .the judgment, it would follow necessarily that, upon violation of the order, the Court woifid have the right to revoke the order, and commit the defendant. On the other hand, if the Court was without power to suspend the execution of the judgment, or withhold the •commitment, then the order so made attempting to do so, would be null and void and without force and effect, and would amount to surplusage. Spencer v. State, (Tenn.) 140 S. W. 597, and cases cited; Fuller v. Miss., 39 L. R. A. (N. S.) 242. This being true the only question involved in this case is whether the Court has lost its power to enforce the execution of its judgment providing for the imprisonment of petitioner in the State penitentiary for' a period of two years, by reason- of the fact that more than •said period of time has elapsed since the imposition of the sentence. I.n other words, can a sentence be satisfied until it has been actually served, in the absence of a pardon? While there is a conflict -of authority upon the proposition, we believe the correct rule was laid down by the Mississippi Supreme Court in the case of Fuller v. Miss., 57 Southern 6; 39 L. R. A. (N. S.) 242.

¶32 “It is immaterial-that a longer period of time than that for which appellant was sentenced has elapsed since the sentence was imposed. While at large under this void order, to which he did not object, appellant was in the same situation that he would have been had, he simply escaped from custody. In such ease the sentence is not satisfied until it has been actually served. Ex parte Bell, 56 Miss. 282; 1 Bishop’s Crim. Proc., 4th ed., 1384; Spencer v. State, (Tenn.) 38 L. R. A. (N. S.) 680, 140 S. W. 597; State v. Abbott, 87 S. C. 466, 33 L. E. A. (N. S.) 112, 70 S. E. 6; Ann. Cas. 1912 B. 1189; Miller v. Evans, 115 Iowa 101, 56 L. R. A. 101, 91 Am. St. 143; 88 N. W. 198; Neal v. State, 104 Ga. 509, 42 L. R. A. 190, 69 Am. State Rep. 175, 30 S. E. 858; Tanner v. Wiggins, 54 Fla. 203, 45 So. 459, 14 Ann. Cas. 718.”

¶4See also, In re Leo Hinson, (N. C.) 36 L. R. A. (N. S.) 343; People v. Patrick, 118 Calif. 332; Ex parte Vance, 13 L. R. A. 574; Dolan’s Case, 101 Mass. 219; O’Dwyer v. Kelley, 133 Ga. 824; In re Herbert L. Collins, 8 Cal. App. 367.

¶5For the reasons stated, petitioner will be remanded to the custody of John B. McManus, superintendent of the State penitentiary, to be dealt with according to law and the writ of habeas corpus will be discharged, and it is so-ordered.