Snodgrass v. State , 67 Tex. Crim. 615 ( 1912 )

At the last term of this court this case was affirmed, and is now pending on a motion for rehearing, appellant insisting that this court erred in holding that Chapter 44 of the Acts of the Thirty-Second Legislature 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 andpenalty 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 woud 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 passingof sentence upon a defendant, is not, and can not 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. The State, decided recently, and the case of People v. Court of Sessions of Monroe County, reported in 141 New York, 288, and some other cases announcing that a court for good cause shown may temporarilysuspend 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 power of the court to remit the penalty assessed by the jury did not arise and was not discussed. In that case Fuller 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 Fuller to undergo the penalty assessed. Fuller 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 Fuller 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 beabsolutely relieved from all punishment, and freed from the power of the court to pass sentence, is open to more doubt. The legislature can not 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 can not, 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 madedependent 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 allpunishment, 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 can not be said to be dicta in the case of People v. Morrisette, 20 How. Prac., 118 (another New York case) 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, 46 Federal Rep., 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 the pardoning power, which was never conferred upon the court."

In the case of People v. Allen, 155 Ill. 61, it is held: "Sentence indefinitely suspended upon a plea of guilty can not 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, 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. The State, 104 Ga. 509, this question is discussed at length, and the authorities collated, both pro and con, 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; In re Markuson, 5 N. Dak., 180; In re Webb, 89 Wis. 354; People v. Blackburn, 6 Utah 347; People v. Barrett, 67 N.E. Rep., 23. And in a note to the case of People v. Cummings, 14 L.R.A. 285, 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 ofthe 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 Crook v. The State,117 N.C. 763: "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 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. Later the courts that tried the cases, after verdict but before assessment of 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 Chitty'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 plead 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. Law, Sec. 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 were 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 by 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 or will that the judiciary shoud 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 can neither 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 shallassess the punishment in all cases where the same is not absolutely fixed by law to some particular penalty." (Art. 626, Willie's Texas Code, 1856.) And in this Code 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," or 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. (Art. 27, Willie's Code of Proc.) As to why the authors of the Constitutions of 1836 and 1845, and the members of the Legislature of that period so provided, especially 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 incipiency 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. (Sec. 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 Texas Crim. App., 193, 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., sec. 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. Proc., 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 can not be said that the conviction in the trial court is complete, so as to work aforfeiture 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 1845, 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 that 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 1856 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 rendered." Article 688: "The only reasons which can be shown on account of which sentence can not 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. Rep., 675, 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 attained (a forfeiture of civil rights) until after the punishment had been assessed by the judgment and sentence of the court. Blackstone says:

"If the jury find him (the prisoner) guilty, he is then said to be convicted of the crime whereof he stands indicted; 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 attainted and convicted is, that a man is said convict before he hath judgment; as, if a man be convict by confession, verdict or recreancie, 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 attainted, 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 says: "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, constitutes a plea or verdict of guilty, and it is immaterial whether or not final judgment has been rendered thereon." (2 Bish. Cr. Law, sec. 903; 1 Bish. Cr. Law, sec. 963.) See also, on this point, People v. March, 6 Cal. 543; People v. Goldstein,32 Cal. 433; Blair's Case, 25 Gratt., 850; Commonwealth v. Williamson, 2 Va. Cas., 211; Shepherd v. People, 24 How. Pr., 38; Commonwealth v. Lockwood, 109 Mass. 323; State v. Alexander,76 N.C. 231; Commonwealth v. Richards, 17 Pick., 295; Nason v. Staples, 48 Me. 125; United States v. Gilbert, 2 Sum., 40; 2 Hawk. P.C., 36, secs. 1, 10; United States v. Watkinds, 6 Fed. Rep., 152; Bouvier's Law Dict., 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? Sentence 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. 231.)

And in Shepherd v. The People, 24 How. Pr., 401, we find the following excerpt quoted approvingly:

"In 1st Inst., 391, a., it is said: `The difference between a man attainted 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 Dict. (Attained), it is said: `Attainder of a criminal is larger than conviction; a man is convicted when he is found guilty or confesses the crimes before judgment had, but not attainted till judgment is passed upon him.' This shows the technical common law definition of the word convict or convicted; a felon was convicted by the verdict of a jury, he was attainted by the judgment rendered on the verdict."

In the 9th Vol. of Cyc., page 865, the general definition of the word "conviction" is given as: "The finding of a person guilty by a verdict of a jury; that legal proceeding of record which ascertains the guilt of the party, and upon which the sentence and judgment is founded," and the following authorities are cited: Fanning v. State, 47 Ark. 442, 443, 2 S.W. 70 (quoting Bishop Cr. L. sec. 223); People v. Rodrigo, 69 Cal. 601, 605, 11 P. 481 (quoting Bishop Crim. L., sec. 223); Ex parte Brown, 68 Cal. 176, 179,8 P. 829 (citing Bishop Cr. L., sec. 903); Bishop State Cr., sec. 348; Jacob L. Dict.; Quintard v. Knoedler, 53 Conn. 485, 487, 2 A. 752, 55 Am. Rep., 149 (quoting Bishop Stat. Cr., sec. 348); State v. Barnes, 24 Fla. 153, 4 So. 560; State v. Moise, 48 La. Ann., 109, 122, 18 So. 943, 35 L.R.A. 701 (quoting State v. Wilson, 14 La. Ann., 446, 448 (citing 1 Chitty Cr. L., 601, 648, 653); Bishop Stat. Cr., sec. 348), where it is said: "The word `conviction,' which occurs in Article 66 of the Constitution, signifies that the defendant's guilt has been ascertained by the verdict of the jury, and not that the sentence of the law has been pronounced by the court."

Francis v. Weaver, 76 Md. 457, 467, 25 A. 413; Com. v. Gorham, 99 Mass. 420, 422 (quoted in Com. v. Kiley,150 Mass. 225, 226, 23 N.E. 55; Com. v. Lockwood, 109 Mass. 323, 330, 12 Am. Rep., 699). Blaufus v. People, 69 N.Y. 107, 109, 25 Am. Rep., 148; Schiffer v. Pruden, 64 N.Y. 47, 52; Messner v. People, 45 N.Y. 1, 12 (citing 4 Bl. Comm., 362; Bouvier L. Dict.); State v. Alexander, 76 N.C. 231, 232, 22 Am. Rep., 675 (quoted in Ex parte Brown, 68 Cal. 176, 180, 8 P. 829).

Wilmoth v. Hensel, 151 Pa. St., 200, 25 A. 86, 91, 31 Am. St. Rep., 738 (citing Smith v. Com., 14 Serg. R. (Pa.), 69); White v. Com., 79 Va. 611, 615 (quoting 1 Bishop Cr. L., sec. 348); Hartley v. Henretta, 35 W. Va. 222, 227, 13 S.E. 375 (quoting Bouvier L. Dict.); United States v. Watkinds, 6 Fed. 152, 158, 7 Sawy. 85 (quoting Bishop Stat. Cr., sec. 348).

Bouvier L. Dict. (quoted in Fanning v. State, 47 Ark. 442, 443, 2 S.W. 70; People v. Rodrigo, 69 Cal. 601, 605,11 P. 481; Hartley v. Henretta, 35 W. Va. 222, 13 S.E. 375). See alse White v. Com., 79 Va. 611, 615, where it is said, referring to this definition: "The first of the definitions here given undoubtedly represents the accurate meaning of the term, and includes an ascertainment of the guilt of the party by an authorized magistrate in a summary way, or by confession of the party himself, as well as by verdict of a jury."

Com. v. Richards, 17 Pick. (Mass.), 295, 296 (quoted in Com. v. Lockwood, 109 Mass. 323, 328, 12 Am. Rep., 699): "Conviction may accrue in two ways, either by his (defendant's) confessing the offense and pleading guilty, or by his being found so by the verdict of his country." 4 Bl. Comm., 362 (quoted in Healey v. Martin, 33 Misc. (N.Y.), 243, 248, 68 N.Y. Suppl., 413; Burgess v. Boetfeur, 8 Jur., 621, 12 L.J.M.C., 122, 7 M. G., 481, 8 Scott N.R., 194, 49 E.C.L., 481). Conviction is on confession or verdict. 6 Dane Abr., 534, 536 (quoted in Com. v. Lockwood,109 Mass. 323, 328, 12 Am. St. Rep., 669). 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 confession. 2 Crompton Just., 9 (quoted in Ex parte Brown, 68 Cal. 176, 179, 8 P. 829; Blair v. Com., 25 Graft. (Va.), 850. So a plea of guilty by defendant constitutes a conviction of him. Ex parte Brown, 68 Cal. 176, 8 P. 829 (quoting Jacob L. Dict.); Bishop Stat. Cr., sec. 348 (quoted in Quintard v. Knoedler, 53 Conn. 485, 487, 2 A. 752, 55 Am. Rep., 149). Compare Blair v. Com., 25 Graft. (Va.), 850, 853.

Distinguished from "judgment" or "sentence." "The ordinary legal meaning of `conviction' when used to designate a particular stage of a criminal prosecution triable by a jury, is the confession of the accused in open court, or `the verdict returned against him by the jury, which ascertains and publishes the fact of his guilt; while `judgment' or `sentence' is the appropriate word to denote the action of the court before which the trial is had, declaring the consequences to the convict of the fact thus ascertained.' Com. v. Lockwood, 109 Mass. 323, 325, 12 Am. Rep. 699 (cited or quoted in Quintard v. Knoedler, 53 Conn. 485, 487,2 A. 752, 55 Am. Rep. 149; State v. Barnes, 24 Fla. 153,4 So. 560; State v. Moise, 48 La. Ann. 109, 121, 18 So. 943, 35 L.R.A. 701; People v. Adam, 95 Mich. 541, 543, 55 N.W. 461; People v. Lyman, 33 Misc. (N.Y.) 243, 248, 63 N.Y. Sup. 331; State v. Alexander, 76 N.C. 231, 232, 22 Am. Rep. 675; Com. v. Miller,6 Pa. Super. 35, 40; In re Freidrich, 51 Fed. 747, 749). See also Hackett v. Freeman, 103 Iowa 296, 299, 72 N.W. 528 (citing Schiffer v. Pruden, 64 N.Y. 47, 52; Blair v. Com., 25 Gratt. (Va.) 850; Bishop Cr. L., sec. 361; McClain Cr. L., sec. 110.

Many other authorities might be cited giving the meaning of the word as defined above, and to give it a larger or more comprehensive meaning, authority must be found in the statutes of the State, and in the statutes of our State instead of there being authority found to give to the words "after conviction" a more comprehensive meaning than was known at the common law, or their common signification at the time they were placed in the Constitution, we find express statutory authority to the contrary, giving to the words the common law meaning, by expressly declaring that at the time of sentence, that in bar of sentence, if he produce a pardon from the proper authority, no sentence should be pronounced but he should be discharged. See article 688, Penal Code of 1856, and which provision and construction has been brought forward in every codification since that date, and it is now article 861 of the Revised Code of Procedure of 1911.

Thus it is seen that the terms "after conviction" in our Constitution do not embrace the sentence but simply mean the determination of guilt by the tribunal authorized to try the issue of guilt or innocence of a defendant, and the person becomes subject to pardon whenever that issue is finally determined. The question of right of appeal can not be properly considered in the case, for our Constitution gives to no one the absolute right of appeal, but only gives the right under such regulations and restrictions as the Legislature may prescribe. (Section 5, article 5 of Constitution.) The Legislature in this bill has provided if a person shall apply and the sentence is suspended, no right of appeal shall exist. So the guilt of the person is finally determined by the tribunal authorized by law to try that issue, the punishment is fixed by the verdict and judgment thereon, and this within the contemplation of our Constitution and laws is a conviction of the offense charged in the indictment, and a final conviction, for no other or additional step is authorized to be taken by any tribunal in determining the guilt or innocence of the accused.

Appellant failed in his brief to draw the distinction between the legal meaning of the words "conviction" and "attainder," and for this reason has fallen into the error he did. Under the common law a man did not forfeit his civil rights until after he had been attainted, and this followed the sentence, whereas he was convicted of the offense by verdict of the jury, that is, by the determination of his guilt or innocence by the tribunal authorized to sit in judgment on that issue. In the Arcia case, supra, this court limited its holding to a forfeiture of civilrights, and specifically so stated in the opinion, and has so held in all subsequent opinions, and the decisions cited are not in conflict with this opinion in this case, when the particular provision of the Act of the Thirty-Second Legislature, the one under consideration, is considered, for the Legislature by that Act has taken from a defendant the right of appeal if the court suspends sentence under its provisions, and the "conviction" becomes a finality, and the Act proceeds on the theory that a chance will be given him for reformation, and release him from punishment for a crime he has committed as an incentive to reform.

And while counsel in their brief take issue with us wherein we stated, that by the provisions of the Act, the court was not only authorized to remit all punishment, but restore him to all hisprivileges, we do not deem it necessary to discuss this at length. It is true that in the Arcia case it was held that a defendant's civil rights were not forfeited until sentence was pronounced and this court had acted on the appeal, if appeal was not waived, but by this Act of the Legislature the right of appeal was taken away, and it is contemplated that no sentencewill ever be pronounced, although the guilt of the accused has been finally determined and his punishment assessed. Had our laws not provided for sentence and an appeal to this court, the holding of Judge Willson would have been wholly different, as is demonstrated by the opinion itself, and would have been in accord with the rule at common law, which was that if a person was adjudged guilty of an offense, and he prayed and was allowed the benefit of clergy, if no sentence was ever pronounced, yet such convicted person would not be competent as a witness, as is stated in both Blackstone's Commentaries and Chitty's Criminal Law. And no one would question, if under this Act a person had been tried and convicted, his sentence suspended, if it should be attempted to try him again for the same offense, a plea of autrefois convict would be sustained by any court in the land, for it would be evidence that he had been tried and convicted of the same offense.

Counsel in their motion and brief admit that if the Act "does attempt to confer pardoning power on the judge, then no intelligent lawyer would deny its unconstitutionality." We will then consider the object, purpose and effect of the Act. It provides that when there is a conviction for any felony (except certain enumerated felonies) and the punishment assessed by the jury is not more than five years, the court shall enter its judgment so finding, but if the jury also finds that the defendant has never before been convicted of any felony, upon application of the defendant the court shall hear testimony, and if in his opinion the defendant has never before been convicted of a felony, and is a proper subject for clemency (this being a matter left entirely within the discretion of the judge) the court may decline to pronounce sentence, and release the defendant on his own recognizance. It further provides though if at any time, within the time prescribed by the Act, the defendant shall again be convicted of a felony, or a misdemeanor involving moral turpitude, the court shall then proceed to sentence the defendant upon the original judgment of conviction. Thus it is seen that this Act is drawn in accordance with the practice of the English courts under the "benefit of clergy" plea as known in the eighteenth century (just before its abolishment in that country), except there is added to the provisions the right to later recall the judgment of clemency and inflict the original punishment for some act thereafter committed. This was never known, or practiced at common law, and as said by the North Carolina court, "We search in vain for authority in the text-books of the law for a precedent for the court to pronounce judgment on the then conditions as they exist, and if subsequently after the term conditions alter, to withdraw the judgment then entered and pronounce an entirely different judgment." But as before stated, the common law plea of benefit of clergy never became a part of the jurisprudence of this State, and unless the sovereign will shall change the provisions of our Constitution, it never can be engrafted thereon. But aconditional pardon was known to the common law and in practice in England at the date of our independence, but it could be granted by the King alone. Mr. Chitty in his Criminal Law (p. 773) says that his Majesty could grant a pardon upon any condition, and if the beneficiary does not perform the condition or conditions, it will be void, and he may be brought back and made to suffer the original penalty.

Mr. Blackstone (iv. p. 401) says a pardon may also be conditional, that is the King may extend his mercy upon what terms he pleases, and may annex to his bounty a condition either subsequent or precedent, on the performance whereof the validity of the pardon will depend, and this by the common law. See also 1 Bail 283; 1 McCord, 176; 1 Park Cr. Cas. 47; 1 Bishop Cr. L. 914; Ex parte Wells, 18 Howard (U.S. 730); Carr v. State, 19 Texas Crim. App. 635. Other learned authors treating of the common law could be quoted and cited, but we deem these sufficient to show that in this statute has been woven all the elements of a conditional pardon as known at the common law, and all the elements of a conditional pardon as practiced in this State from its organization and now in actual practice. This character of "suspension of sentence" or reprieve was never exercised by the common law courts, and is and was unknown to the English jurisprudence, and the jurisprudence of this country, and to term it a "suspension of sentence" is a misnomer and giving those words a meaning unknown to the law and unauthorized by any lexicographer. At the time when the common law of England was adopted as a part of the jurisprudence of the United States, the law relating to the pardoning power of the crown was well established; the meaning of the terms, "pardon," "reprieve," and the like were thoroughly understood, and the rules governing the nature and extent of the pardoning power, the construction of pardons and their effect, were well settled. The pardoning power as conferred by the Constitution of the United States and the constitutions of the various States is in its essential elements the same as the pardoning power which for centuries has been exercised by the King of England, and which prior to the revolution was exercised in those parts of this country which were British colonies. When, therefore, it becomes necessary to construe and interpret any constitutional grant of the pardoning power, the established principles of the common law of England, and the meaning of legal terms as understood and used in the jurisprudence of that country, furnish a basis for the decisions of both the state and the federal courts throughout the United States.

What is a pardon? That term has been defined and has a well understood meaning. In Carr v. State, supra, this court held: "A pardon is a remission of guilt." (1 Bish. Cr. Law, section 898.) It is full, partial or conditional. Full, when it freely and unconditionally absolves the party from all the legal consequences of his crime and of his conviction, direct and collateral; including the punishment, whether of imprisonment, pecuniary penalty, or whatever else the law has provided. (1 Bish. Cr. Law, section 916.) Partial, where it remits only a portion of the punishment, or absolves from only a portion of the legal consequences of the crime. Conditional, where it does not become operative until the grantee has performed some specified act, or where it becomes void when some specified event transpires. (1 Bish. Cr. Law, sec. 914.) In the case under consideration the pardon is clearly of this latter class. Its validity is made dependent upon the condition subsequent, that the grantee shall not violate any of the criminal laws of this State." This definition is in accordance with the decisions of all the courts of last resort not only in this country, but of England as well. In 7 Bacon Abi., Title Pardons, it is said: "An act of grace which exempts the individual on whom it is bestowed from the punishment the law inflicts for a crime he has committed."

Could the meaning of the Act of the Thirty-Second Legislature be more clearly expressed and what does this Act of the Legislature attempt or propose to do but exempt a man from the punishment assessed against him for a crime he has committed, upon the sole ground that he go and sin no more? It has no other object, purpose or effect, and by giving it a different name or designation does not change its legal meaning or effect, and the technical hair splitting attempted in an effort to sustain the law does credit to the ingenuity of counsel, but such fine spun distinctions to evade the highest law of any land (its Constitution) can not be given countenance in any court, else the safeguards thrown around our citizenship by the Constitution, protecting them in their life, liberty and property, could be construed out of existence by a judiciary grasping after authority and power, as said by Mr. Cooley. A long list of authorities will be found collated on pages 1559 and 1560, 29 Vol. of Cyc., and a long list of Texas cases will be found in Buckley's Criminal Digest, beginning on page 1229, relating to pardons, etc., and the meaning of the word.

Thus it is seen that the object and purpose of the Act in question, and the sole object and purpose, is to grant to a defendant adjudged guilty of crime, and his punishment assessed, immunity from the punishment on condition that he will not violate any law of the land for a given period of time, and is nothing more nor less and performs the office of a conditional pardon, to become absolute upon compliance with the conditions. This, in the language of appellant's counsel, we think no intelligent lawyer would deny, and if so, it necessarily follows the Act is unconstitutional.

That portion of appellant's brief relating to the power of a court to grant a new trial need not be discussed, because the Act in question does not contemplate another trial of the defendant for the offense, but if he complies with the conditions upon which he is released, the Act contemplates and requires the court to discharge him, regardless of the fact that his guilt has been established in a court of competent jurisdiction beyond question. But we will say that the rule of law is, where no motion for new trial has been filed, after the end of the term at which the judgment was entered, no court has the power or authority to grant a new trial or change its judgment at a subsequent term. Mr. Chitty says: "The judge's judicial authority terminates at the conclusion of the session. . . . It is clear the court may vacate the judgment during the session, because it is regarded as one day, but they can not do it at any subsequent period, unless adjournment be entered on the roll, that is, an order entered continuing the motion." (Crim. Law, 721.)

Freeman on Judgments, Sec. 69, lays down the rule: "During the term wherein a judicial act is done, the record remaineth in the breast of the judges of the court, and in their remembrance, and therefore the roll is alterable during the term, as the judges shall direct, but when the term is past, then the record is in the roll and admitteth no alteration, averment or proof to the contrarie. (Co. Litt., 260; 3 Black. Comm., 407.) Of the law thus laid down the only part remaining unshaken is that during the term the proceedings remains in the breast of the judges. Not only the records during that term are subject to revision of the court, but the judgment itself may be altered, revised or revoked, as well as amended in respect to clerical errors and matters of form. As a general rule, the judgment can not be amended after the term at which it was rendered. The law does not authorize the correction of judicial errors under the pretense of correcting clerical errors. To entitle a party to amend a judgment or decree, he must establish that the entry as made does not conform to what the court intended it should be when it was ordered." However, the rule in Texas is statutory. Article 2025 Revised Statutes, reads: "All motions for new trial, in arrest of judgment, or to set aside a judgment, shall be determined at the term at which said motion is made." And Article 2023 provides, that the motion must be made during the term at which the judgment was rendered. It is useless to discuss the decisions of those states where the statute authorizes a motion to be filed and heard at a later term, for no one doubts the authority of the Legislature to so provide. In the absence of all legislation, a judgment becomes final when the term is ended, and especially is this true in Texas for the law so provides.

The other questions raised in appellant's brief relate to matters discussed in the companion case to this, decided by Presiding Judge Davidson, and we will not discuss them, but leave them to be treated by him.

But there is another section of our Constitution appellant seems to have wholly overlooked. Section 2 of Article 16 commands the Legislature to enact certain laws in the following language: "Laws shall be made to exclude from office, serving on juries, and from the right of suffrage, those who may have been or may hereafter be convicted of bribery, perjury, forgery, or other high crimes." The Legislature in obedience to this command has passed laws in accordance with its provisions, but this Act of the Legislature, although a person had been adjudged guilty of forgery or bribery, if appellant's construction is correct, and they suffer no disability by reason of such conviction, would be in direct conflict with this provision of the Constitution, and would therefore be void. There are other provisions of the Constitution that the Act in question is violative of, but the opinion has already been drawn out to such great length that we do not deem it necessary to discuss them, as the Act in question is clearly in contravention of the provision granting to the Governor alone the power and authority to remit the punishment for crime when a person has been legally adjudged guilty and his punishment assessed, and also section 2 of article 16, wherein it is provided that men adjudged guilty of certain offenses shall forfeit certain rights and privileges.

At the risk of again being criticised for stating that we sympathize with the purpose of the law to give first offenders a chance to reform, yet we say we heartily approve legislation with that object in view, but the terms and provisions of such legislation must be in accordance with the provisions of our Constitution. A law can be drawn where if on the trial it appears that it is the first offense, and the evidence convinces the judge that the best interests of society, of the individual, and of the State would be served if the hands of the law were stayed, and the person adjudged guilty be given a chance to reform, to recommend to the Governor a conditional pardon, and we are sure that in every deserving case the recommendation would be complied with by the Governor. The people had the confidence in the Governor to place this power in his hands, and we too have the same confidence. The law could require that he have the court stenographer make a copy of the testimony heard, and require the judge to forward it to the Governor, with his recommendation, and provide that the prisoner be not conveyed to the penitentiary until the Governor had acted on the recommendation. Thus the end sought may be reached in a way not violative of our Constitution, and all the good features in the law be retained. But while we sympathize with the purposes of the law, and think its provisions, if they could be carried out, might and probably would be productive of much good, yet the people of this State wrote and adopted their Constitution, granting their power to whom they deemed proper, and if it is altered or changed in any provision, it must be done by them, and not be frittered away by technical judicial construction, and so long as we shall remain on the bench, no matter how our sympathies may be, and no matter who may seek to exercise authority not given them, we shall take the Constitution as our guide and uphold it in all its provisions, for it is the supreme law of the land. In doing so, we are simply doing our duty, and we will not countenance usurpation of authority by the judiciary any more than we will in any other department of government.

The motion for rehearing is overruled.

Overruled.