1. CRIMINAL LAW; SENTENCE OF DEATH; SUSPENSION OF EXECUTION. — The Court of First Instance which imposes a death penalty has the power to suspend temporarily the execution of the sentence, after the judgment has become final, and after the date has been fixed for the execution, in order to secure and conserve any legal right asserted on behalf of the prisoner held under such sentence, based upon grounds, arising after judgment has become final, the adjudication of which does not challenge the validity of the judgment convicting and sentencing the convict, nor involve a review or reconsideration of the proceedings upon which it rests.
2. ID.; ID.; ID.; GROUNDS THEREFOR. — Among such grounds are the alleged insanity or pregnancy of the convict, the alleged nonidentity of the prisoner with the person actually convicted and sentenced, the alleged lack of a suitable opportunity to be heard on an application for executive clemency, and the like.
3. ID.; ID.; ID.; INDEFINITE SUSPENSIONS. — It does not lie within the power of the courts to grant indefinite, permanent or conditional suspensions of the execution of sentences pronounced in criminal cases. The exercise of such power is in effect a grant of a pardon more or less absolute. It is not expressly conferred upon the courts in this jurisdiction, nor is it inherent in the judicial function.
4. ID.; ID.; ID.; ID.; POWER OF SUPREME COURT. — Should the judge of a Court of First Instance abuse the discretion conferred upon him as to the grant or denial of temporary suspensions of the execution of capital sentences, by repeated suspensions without reasonable grounds therefor, or by suspending the day fixed for the execution to so distant a date as to amount to an indefinite suspension, this court has the power, in appropriate proceedings, to compel him to perform the duty imposed upon him, and to proceed to the execution of the sentence without unreasonable or unnecessary delay.
5. ID.; ID.; ID.; ABUSE OF DISCRETION. — Arguments based on the possibility of abuse of discretion have no proper place in an inquiry as to the existence of legal power in a particular case in a judge of a court of general jurisdiction.
6. ID.; ID.; ID.; EXECUTIVE AND JUDICIAL REPRIEVES. — Executive and judicial reprieves or respites of the execution of capital penalties, while substantially the same in effect, are wholly distinct, as to the sources and origin of the power to grant such reprieves or respites, and as to the grounds upon which it may be exercised.
7. ID.; ID.; ID.; POWER OF COURTS UNDER FORMER SPANISH LAWS. — Under the Spanish law in force in these Islands prior to the American occupation, judges of Courts of First Instance were clothed with power to grant temporary suspensions of executions of capital sentences, not merely to secure legal rights of a prisoner under sentence of death arising after the judgment imposing sentence had become final, but also in any case wherein a suspension was deemed necessary to secure the orderly and decorous course of the proceedings.
8. ID.; ID.; ID.; ID. — Spanish procedural and substantive law, including pertinent Royal Orders, cited in support of foregoing proposition.
9. ID.; ID.; ID.; ID.; ACTS NOS. 451 AND 1577. — Act No. 451, and Act No. 1577 of the Philippine Commission, set out in the opinion, leave in full force and effect the "existing law" (Spanish) touching the execution of death penalties, save only in so far as they are "in conflict or inconsistent therewith;" and there is nothing in either Act in conflict or inconsistent with the provisions of Spanish law touching temporary suspensions by the courts of the execution of death penalties, at least to the extent necessary to secure the legal rights of prisoners held under sentence of death.
10. ID.; ID.; ID.; POWER OF COURTS. — The exercise of power by the courts in these Islands to grant temporary suspensions of the execution of capital penalties is not an invasion of the pardoning power of the Chief Executive- and it in no wise conflicts with the well-recognized principles of practice and procedure in the courts of the United States and England, upon which the present system of criminal procedure is modelled.
11. ID.; ID.; ID.; BOTH EXECUTIVE AND JUDICIAL SUSPENSION. — In any case wherein both an executive and judicial suspension of an order fixing the time for the execution of a death penalty have been allowed, there can be no conflict of authority if full force and effect be given to both of the orders suspending the execution, which in that event will take place on the last date to which the time set in the original order is suspended by either executive or judicial respite.
12. ID.; ID.; ID.; COMMON LAW DOCTRINE. — Under the common law doctrine as announced by the great common law authorities, every court which had power to award execution had power to grant respite or reprieve of the execution of its own death sentences.
13. ID.; ID.; ID.; ID. — Citation of authorities showing that this common law doctrine survives in full force and vigor to the present day in the United States, except in so far as it has been modified in a few states by express constitutional or legislative enactment.
14. ID.; ID.; ID.; RIGHT TO BE HEARD ON APPLICATION FOR EXECUTIVE CLEMENCY. — Upon both American and Spanish precedent and authority: Held, That a convict under sentence of death has a substantial legal right to a suitable opportunity to be heard upon an application for executive clemency.
15. ID.; ID.; ID.; CASES CITED TO SUPPORT CONTRARY DOCTRINE DISTINGUISHED. — Cases cited in support of the contrary doctrine to that laid down in this opinion examined and distinguished.
Per JOHNSON, J., dissenting:chanrob1es virtual 1aw library
16. CRIMINAL LAW; EXECUTION OF FINAL JUDGMENT; RIGHT OF JUDICIAL DEPARTMENT TO SUSPEND OR TO REPRIEVE AFTER THE SAME HAS PASSED TO THE EXECUTIVE DEPARTMENT. — Courts have no right or jurisdiction to interfere, in any manner whatever, in a criminal case, after the decision in the same has become final, and its execution has passed into the executive department of the Government. That the courts may suspend the execution of a sentence before the same becomes final is not disputed. But a distinction must be made between suspensions before a sentence becomes final and a suspension after the sentence becomes final. The former is within the jurisdiction of the court. The latter suspension is a reprieve or a species of pardon, which the courts can not exercise. The power to pardon or reprieve is expressly given to the Governor-General in the Philippine Islands. The power to pardon includes the power to reprieve. If the executive department of the Government possesses the only power to pardon, then it possesses the only power to reprieve. After a sentence has become final, any attempt by the judicial department to alter, amend, or modify the same, is unwarranted in law. The moment a sentence in a criminal case becomes final, the judicial department has lost its jurisdiction over the person of the defendant. The defendant is then in the custody of the executive department of the Government for the execution of the sentence. If an injustice has been done, the executive department has authority, under the general pardoning power, to correct it. After final sentence, the cause passes out of the hands of the courts, and the courts themselves have no power to recall it. An attempt on the part of the court, after final sentence has been pronounced, to recall the same for any purpose is clearly obnoxious to the objection of its attempted exercise of power, not judicial, but one which is vested in the executive department of the Government. The courts can not assume that the executive department of the Government will disregard any of the fundamental rights of men, in the execution of a final sentence pronounced by the courts. The courts can not assume that the executive department of the Government will do an injustice or violate the law.
17. ID.; ID.; PARDON OR REPRIEVE; RIGHT OF COURT, AFTER FINAL JUDGMENT, TO GRANT REPRIEVES OR PARDONS WITHOUT EXPRESS STATUTORY AUTHORITY. — In the absence of a statute providing otherwise, the general principle obtains that a court can not set aside or alter its final judgment after the expiration of the term at which it was entered, unless the proceeding for that purpose was begun during the term. All are agreed that, in the absence of statutory authority, it does not lie within the power of the courts to grant suspensions of final sentences. The allowance of a suspension of the execution of a final sentence, lawfully imposed, is, in effect, a grant of a pardon more or less absolute. The exercise of such a power is not expressly conferred upon the courts in this jurisdiction, nor is it inherent in the judicial function. The right of the courts to grant suspensions of final sentences has been quite uniformily denied, except where such power has been conferred by the Constitution or by legislative enactment.
18. ID.; ID.; RIGHT OF COURTS TO SUSPEND FINAL SENTENCE. — "All are agreed that, in the absence of statutory authority, it does not lie within the power of the courts to grant such suspensions of final sentences. The exercise of such a power is not expressly conferred upon the courts in this jurisdiction, nor is it inherent in the judicial function." This rule applies equally to both civil and criminal cases. In the present case the sentence had become final, and there is no authority in the record for the statement that the suspension was made in order that a petition for pardon might be presented.
The judge of the Court of First of Instance of Cavite fixed a definite date, the 12th of the present month of January, 1915, for the execution of a capital sentence, and then upon petition of one of the parties the same judge of first instance of the said district postponed or deferred for several days the date so fixed, by setting another definite date, the 27th of this same month. The Attorney-General applied to this Supreme Court for a writ of certiorari
, alleging that the lower court had exceeded its jurisdiction, because after it had once performed its ministerial duty of fixing the date for execution of the sentence its jurisdiction had terminated and nothing done by it thereafter could have any validity. The respondent judge filed a demurrer to the Attorney-General’s petition.
At the hearing on the demurrer the parties agreed that the facts had already been reviewed by this Supreme Court, as well as the question of law involved in the demurrer, and really the only fact is that the defendants were seeking a pardon or commutation of the capital penalty; and as the 12th day of January, 1915, the date on which the penalty v. as to be inflicted, was approaching, they requested the lower court to set another date or to grant the extension which the court ordered in deciding the motion. In view of this agreement of the parties it is unnecessary to call for the transcript of the record to be reviewed by this Supreme Court in accordance with the provisions of section 217 of Act No. 190, or to try the case and hear the parties in order to pass upon the application for the writ of certiorari
, that is, whether the lower court exceeded its authority in the exercise of its powers, as is provided in section 220. In fact, even though the record had been called for and the application transmitted to the respondent judge, the present status of the case would have been attained whether he had filed the present demurrer or had answered. Hence we consider that there has been fully submitted to us the case of whether or not the lower court exceeded its authority in fixing another subsequent date for carrying out the capital sentence in question, already set by it for the 12th of the present month.
The question, therefore, is this: Did the court have jurisdiction, after fixing a date for the execution of its sentence, to set another subsequent date by deferring it or by fixing an interval of time for its fulfillment?
It is contended that after the court has once issued its order of execution it has performed its final act of jurisdiction and then has nothing more to do with the case; that the convict has then passed to the hands of the executive, the only authority thenceforward competent to perform the acts necessary for putting the penalty into effect; in other words, that judicial authority over the convict has terminated and that he has passed completely into the control of the executive. Hence it is inferred that if there were any cause or reason for putting off the execution, the application for that purpose could not be addressed to the court that ordered the execution but to the executive authority charged with carrying it out. In this way, it is further contended, the independence of each authority is maintained, and interference with one by another is prevented. Also, the immutability of the res judicata is assured by not permitting the court that has already said its final word in the case to add any further word whereby it may substantially alter or change its decision therein, which is what would happen by changing or altering the execution date already fixed.
This Supreme Court has repeatedly declared in various decisions, which constitute jurisprudence on the subject, that in criminal cases, after the sentence has been pronounced and the period for reopening the same has elapsed, the court can not change or alter its judgment, as its jurisdiction has terminated, functus est officio suo, according to the classical phrase. When in cases of appeal or review the cause has been returned thereto for execution, in the event that the judgment has been affirmed, it performs a ministerial duty in issuing the proper order. But it does not follow from this cessation of functions on the part of the court with reference to the ending of the cause that the judicial authority terminates by having then passed completely to the executive. The particulars of the execution itself, which are certainly not always included in the judgment and writ of execution, in any event are absolutely under the control of the judicial authority, while the executive has no power over the person of the convict except to provide for carrying out the penalty and to pardon.
Getting down to the solution of the question in the case at bar, which is that of execution of a capital sentence, it must be accepted as a hypothesis that postponement of the date can be requested. There can be no dispute on this point. It is a well-known principle that, notwithstanding the order of execution and the executory nature thereof on the date set or at the proper time, the date therefor can be postponed, even in sentences of death. Under the common law this postponement can be ordered in three ways: (1) By command of the King; (2) by discretion (arbitrio) of the court, and (3) by mandate of the law. It is sufficient to state this principle of the common law to render impossible the assertion in absolute terms that after the convict has once been placed in jail the trial court can not reopen the case to investigate the facts that show the need for postponement. If one of the ways is by direction of the court, it is acknowledged that even after the date of the execution has been fixed, and notwithstanding the general rule that after the Court of First Instance has performed its ministerial duty of ordering the execution, functus est officio suo, and its part is ended, if however a circumstance arises that ought to delay the execution, there is an imperative duty to investigate the emergency and to order a postponement. Then the question arises as to whom the application for postponing the execution ought to be addressed while the circumstance is under investigation and as to who has jurisdiction to make the investigation.
Here are some possible instances that immediately present themselves, of postponement by mandatory provisions of the law. Commentators point out that of the execution of a woman who is pregnant. For example, the 12th of the present month of January is fixed for the execution of the capital penalty upon such a woman, and on the 11th, one day previous, a motion is Presented to postpone the execution during investigation of the circumstance as to whether she is really pregnant. The law prescribes that the death penalty shall not be inflicted upon a pregnant woman, nor may the sentence wherein it is imposed be communicated to her until forty days after delivery (Penal Code, art. 104). If on the 11th of January it were clearly shown by sufficient evidence that the woman was pregnant, the law’s precept must be obeyed; the capital penalty must not be inflicted, nor may the sentence even be communicated to her until forty days after her delivery. Were the penalty to be executed on the 12th of January on the ground that this date is unalterable on account of lack of jurisdiction in the trial court, the law’s prohibition would be plainly violated and the consequent responsibility unavoidably incurred. Postponement, alteration of the date, or fixing an interval of time for investigating the emergency and carrying out the provision of the law, should the circumstance be proven, is absolutely necessary. No one can doubt that jurisdiction for investigating such a circumstance can not be other than judicial, so that a proper and decisive finding may be made on the point of law. The motion on this particular incident of the execution must necessarily be presented to the court, for to no body can it imply a change or alteration of the judgment, because the judgment remains in force and will be executed, as res judicata, and finished; it would not be a thing decided and finished if it were to have been executed on some particular date, since this is not a part of the judgment, for neither the judgment of the lower court nor the affirmation of the Supreme Court makes any mention of the date of execution. And if it did, for that very reason the courts must be applied to for securing compliance with this article 104 of the Penal Code. So it is that it is always the courts to which application must be made for postponement of the execution, for deferring the time fixed therefor, because the law so directs, and the court is, beyond any doubt at all, the only authority competent to apply this provision of the Penal Code.
Another instance where the law intervenes is that where insanity develops in the convict before the date fixed for the execution. The same reasons as set forth for the preceding instance hold good in this one, wherein it is the Penal Code itself which positively determines the function of the trial court to pass upon and decide the matter. (Penal Code, art. 8, par. 2.)
An instance of the discretionary power (arbitrio) of the court that may be pointed out is that of identification Or the convict to be executed. A capital sentence has been passed upon Pedro Fernandez, and one Pedro Fernandez has been a prisoner at the disposition of the court wherein all the proceedings in the case have been had; but before the date fixed for the execution it has been discovered on sufficient evidence that the prisoner Pedro Fernandez who is to be executed is not the Pedro Fernandez of the complaint in the case and of the judgment; and as the judgment cannot be executed upon any but the real culprit the execution must be postponed in order not to incur the risk, the inhumanity, and the iniquity of hanging an innocent person. It is an obligatory case of deferring or postponing the execution, and no one can doubt that it is the trial court, and not the executive authority, which has power to make the proper finding on the identity put in question, and therefore to it must be presented the application to postpone the execution for the purpose of investigating such emergency.
In these and analogous cases that may occur, a genuine point of law, and not of administration, presents itself, an incidental question of exact and strict law, of indisputable judicial character, which necessarily has to be inherent in the principal question decided, wherefore, the court. having jurisdiction over the principal question, must have jurisdiction over the accessory.
Now an instance is presented, in the case at bar, which is neither one of justice nor strictly of law. The parties have submitted for our decision as a stipulated fact that the reason for tee motion presented to the respondent judge for ordering the postponement he decreed was the need of allowing time for action on the petition for pardon or commutation presented to the Governor-General, or. briefly, an act of clemency. This is an instance of postponement by command of the King under the common law.
The whole question now resolves itself into these definite terms: To whom should have been presented this application for postponement of the execution of the capital sentence fixed by the respondent judge for the 12th day of January, 1915? It is the most genuine instance of a reprieve — the postponement of a sentence of death. Webster defines the word reprieve as "the temporary suspension of the execution of a sentence, especially of a sentence of death," and there are not lacking those who maintain that this word ought to be applied only to postponement of a sentence of death.
In order to correct or prevent misconceptions some preliminary observations should be made: first, that reprieve. the postponement of execution of the judgment, is not a suspension of the judgment itself, the distinction being that the postponement merely puts off or defers the execution of the judgment to a certain day, while suspension of the judgment is for an indefinite time (Carnal v. People, 1 N. Y., Parker Cr. R., 262); second, that postponement of execution of the judgment does not in any way affect the executory nature thereof, and it will be carried out on the day to which it has been set forward. What is done is to defer or postpone the execution.
In resolving the question we decide that there can be no doubt that the Governor-General, who has the power to pardon the convict or commute the penalty imposed upon him, has necessarily and as a consequence the power to defer or postpone the execution of the sentence, in order to enable him to consider the petition presented to him and to exercise in due form such a sovereign prerogative; and it is clear that to him can be addressed the application for postponement of the date of execution fixed by the court in order that he may pass upon the petition which he has under consideration. But must the application for reprieve or postponement necessarily be presented to the Governor-General, along with the petition for pardon or commutation of the penalty, as the only one who has authority in such case? This we do not find to be determined by any provision, while the contrary is laid down as the principle in standard text books. the action of the respondent judge may have been guided by the principle that both fixing and postponement of a day for the execution of a convicted criminal is, under the common law, a judicial power and cannot be exercised by a governor unless he be expressly authorized by the Constitution. He may also have been guided by the principle that in the common law the power to postpone the execution, to reprieve, is vested in the courts as the agents of the King, who is regarded as the true source of justice and to whom appeals for administering it are not made in ordinary cases but only in those of extreme necessity. (State v. Hawk, 47 W Va., 434;34 S. E., 918.)
Finally, a consideration that decides the question involved in the present certiorari
proceedings is the principle, well authenticated, that in the common law a reprieve or postponement can be granted by either one or the other, either by the King under his pardoning power or by the court; and that every court which has the power to order an execution has also the power to order its postponement. (Clifford v. Heller, 63 N. J. L., 105; 42 Atl., 155; 57 L. R. A., 312.)
Only by demonstrating that all these principles are in correct, and the only correct one is that the power to postpone the execution rests exclusively with the Governor-General and that the trial court cannot exercise it, can it be concluded that the respondent judge has exceeded his authority in the exercise of his jurisdiction and has given cause for the remedy sought. AS this has not been demonstrated, his action appears to be lawful.
There is no ground for annulling the order of the Court of First Instance of Cavite sought to be reviewed in the present certiorari
proceedings; without special finding as to costs. A copy of this final judgment will be transmitted to said court. So ordered.
, Torres and Araullo, JJ.
, concurring:chanrob1es virtual 1aw library
The object sought to be attained by the Attorney-General by the institution of these certiorari
proceedings is to have this court declare null, void, and without effect an order entered in the Court of First Instance of Cavite, suspending the execution of a death penalty from January 12, 1915, the day originally set for the execution by a former order of that court, until January 27, 1915, in order to give the convicts a suitable opportunity to make application for executive clemency.
It is admitted that this Court should not issue the writ unless it appears, either that the judge of the court below had no jurisdiction or legal power to issue such suspending order, or that in doing so he abused the discretion conferred upon him in that regard. It is not contended, nor can it be successfully maintained, that if the judge below had legal power to suspend the execution there was any abuse in his discretion in suspending it for fifteen days. It is admitted that if the trial judge had any jurisdiction in the premises, the time allowed was neither excessive nor unreasonable. It is clear therefore that the only real question involved in these proceedings is whether a judge of a Court of First Instance, charged with the execution of a death sentence, has legal power, after the judgment imposing sentence has become final, and after he has set a day for its execution, to suspend the execution of the sentence temporarily (for a short, definite and reasonable period), in order to give to the accused a suitable opportunity to submit an application for executive clemency. It is contended (in the language of the dissenting opinion) that "the moment a sentence in a criminal case becomes final, the judicial department has lost its jurisdiction over the person of the defendant;" and that "a distinction must be made between suspensions before the sentence becomes final, and suspensions after the sentence becomes final. The former is within the jurisdiction of the court. The latter suspension is a reprieve or a species of pardon which the courts cannot exercise."cralaw virtua1aw library
To my mind the reasoning of the prevailing opinion, pre- pared by Chief Justice Arellano, satisfactorily establishes the power of the courts to suspend temporarily the execution of a capital penalty in order to secure and conserve any legal right asserted on behalf of a prisoner held under sentence of death, based upon grounds arising after judgment has become final, the adjudication of which does not challenge the validity of the judgment convicting and sentencing the convict, or involve a review or reconsideration of the proceedings upon which it rests. Among such grounds are the insanity or pregnancy of the convict, the non-identity of the prisoner with the person actually convicted and sentenced, the lack of suitable opportunity to be heard on an application for executive clemency, and the like. This separate opinion is, therefore, intended merely as an amplification of the prevailing opinion. In it I shall discuss more especially the contention of the Attorney-General against the existence of such power in the courts, based on the assumption that its exercise involves an invasion of executive authority; and I shall endeavor also to set forth at greater length the statutory provisions and the citations from common and civil law authorities which seem to me leave no room for any real question as to the existence of such powers in the Courts of First Instance.
Having stated affirmatively just what I conceive to be the real issue involved in these proceedings, perhaps it will make for clearness to set forth also at the outset and as summarily as may be, some cognate or closely related questions which, although not submitted for adjudication, have been injected into the discussion and have tended to create some confusion and uncertainty in the citation of authority and the reasoning of counsel upon the real issue in the case at bar.
1. There is no question here of the power of the courts to grant indefinite, permanent or conditional suspensions of the execution of sentences pronounced in-criminal cases. All are agreed that in the absence of statutory authority, it does not lie within the power of the courts to grant such suspensions. The allowance of a permanent, indefinite or conditional suspension of execution of a sentence lawfully imposed is in effect a grant of a pardon more or less absolute. The exercise of such a power is not expressly conferred upon the courts in this jurisdiction, nor is it inherent in the judicial function. The right of the courts to grant such suspensions of sentence has been quite uniformly denied, except in a few States wherein it is held that power to grant indefinite suspensions of prison sentences has been conferred upon the courts by constitutional or legislative enactment; and it is worthy of note that most, if not all the citations of authority to which our attention has been directed, wherein the authority of the courts to suspend execution of sentences has been denied, are cases wherein attempts were made to grant indefinite, conditional, or permanent suspensions.
2. There is no question here of an attempt to modify, alter or amend a final judgment convicting and sentencing the defendant in a criminal case. We have frequently decided, in line with the uniform doctrine of the courts generally, that after a judgment imposing sentence in a criminal case has become final, there is no power in the courts to alter, modify or amend it. Mistakes of law or fact cannot then be corrected by the courts, and if by the production of newly discovered evidence, or otherwise, a doubt can be raised as to whether the accused was justly convicted, recourse for relief must be had to the pardoning power of the Chief Executive. But the temporary suspension of an order fixing the time for the execution of a capital sentence, in order to secure a legal right of the prisoner arising after the imposition of sentence, in no wise tends to alter, modify or amend the judgment convicting the accused and imposing sentence upon him.
3. This is not a question of the suspension of the execution of a prison sentence. It is a suspension of the irremediable execution of a capital penalty. In the very nature of things, a clear distinction exists, and has been universally recognized by the courts, in the proceedings looking to the enforcement of execution of the different classes of penalties prescribed by law. As we shall presently see, the enforcement of the execution of capital penalties is vested wholly and exclusively in the Courts of First Instance, acting through their proper officers, the judges and the sheriffs; so that the person of the convict is never turned over to the executive department of the Government for execution of the sentence. The contrary rule appears to prevail in the enforcement of the execution of prison sentences. Care, therefore, must be exercised to distinguish the reasoning of judicial and textbook authorities in treating of suspensions of execution of the different classes of penalties. There are some that deny the applicability to prison sentences of the common law rule referred to by the Chief Justice, but none has been cited, and a diligent search has failed to disclose any case, denying the existence of that rule in relation to the suspension of the execution of death penalties.
4. We are not now considering the suspension of execution of a part of a sentence. Some questions have arisen as to the power of the courts to suspend a sentence in part without suspending it in its entirety. Such questions have no place in this discussion.
5. We are not dealing with the exercise of a power expressly regulated or controlled by statutory enactment. In a few States attempts have been made by legislative enactment to restrict or control the exercise by the courts of power to suspend the execution of sentences, either temporarily or permanently; but we are not here concerned with the discussions which have arisen under such statutory enactments, since no legislation of this kind has been adopted in these Islands.
6. We are not here concerned with any question as to the abuse of discretion by the judge below in the exercise of the power to suspend. Should the judge of a Court of First Instance abuse his discretion in this regard by repeated suspensions without reasonable grounds therefore, or by suspending the time fixed for the execution to so distant a date as to amount to an indefinite suspension, it can hardly be doubted that this court has the power, in appropriate proceedings, to compel him to perform the duty imposed upon him, and to proceed to the execution of the sentence without unnecessary or unreasonable delay. But no abuse of discretion of the trial judge is insisted upon at this time; and, in any event, arguments based on the possibility of abuse of discretion have no proper place in an inquiry as to the existence of legal power in a particular case in the judge of a court of general jurisdiction duly appointed by the Governor-General, by and with the consent of the Commission.
7. We are not dealing with a power to reprieve in the sense in which that word is used in connection with the exercise of executive clemency by the authority in whose hands is vested the pardoning power. True, there is little or no difference in effect between a temporary suspension of execution of a capital sentence granted by the Chief Executive and such a suspension when granted by the courts. Both have the effect of staying the execution without impairing or altercating the judgment convicting and sentencing the convict. Both are referred to by the law writers as reprieves or respites. (Bishop’s New Criminal Procedure, vol. II, par. 1299.) But the sources and origin of the power as exercised by the courts and the Chief Executive, are wholly distinct, as also are the grounds upon which it is exercised by the different departments of the government. As an incident to the pardoning power, reprieves are granted as an act of grace, and like pardons may be granted in the arbitrary discretion of the Chief Executive, without assigning and indeed without the existence of any special reason therefor. On the other hand, suspensions of executions of capital penalties, when granted by the courts, although sometimes called respites or reprieves, are in truth no more than stays of execution. which should only be granted for cause and in the exercise of a sound judicial discretion, the power of the courts in this regard being derived from the inherent necessity for its exercise in order to secure some legal right of the prisoner arising after judgment has become final.
x x x
No one has ventured to question the power of judges of the Courts of First Instance, under the system of criminal procedure in force in these Islands prior to the transfer of sovereignty to the United States, to issue the necessary autos (orders) for the temporary suspension of the execution of death sentences. Under the Spanish law of procedure in criminal cases, there could be no doubt as to the power of those judges to grant temporary suspensions of executions of capital sentences, not merely to secure the legal rights of the convict arising after judgment imposing sentence has become final, but also in any case wherein a suspension was deemed necessary to secure the orderly and decorous course of the proceedings.
That such power existed becomes manifest from the most cursory examination of the procedure marked out by Spanish law for the execution of capital sentences. It appears by necessary implication from the provisions of articles 949 to 959 of the "Enjuiciamiento Criminal" and the annotations to those articles in the "Compilacion Reformada" by the author, Hermenegildo Maria Ruiz y Rodriguez; and it may fairly be inferred from the terms of the royal decrees communicated to the captains-general of Cuba, Porto Rico, and the Philippines on June 4, 1849, 2 and July 8, 1863. Indeed, as indicative of the powers and duties of the courts under the former law, I need only refer specifically to the provisions of two of the abovementioned articles, 956 and 957, which prescribed that the Court of First Instance of the province wherein the execution took place should open session and continue sitting from the moment the convict left the goal, in which he was detained, on his way to the place of execution, until it had received the proper official report of his execution; and that the secretary of the court and the alguacil (sheriff), commissioned for the purpose, should proceed with the convict to the place of execution.
In like manner the power of the courts in this regard may fairly be inferred from those provisions of Spanish substantive law which clearly recognized the existence of legal rights to a suspension of an order for the execution of a death penalty, which might arise after the sentencia (sentence) had become final. Thus article 104 of the Penal Code prohibits the execution of a pregnant woman in express terms. So also, the Spanish law, like the common law of England, forbade the execution of an insane person. And, of course, it had in contemplation a legal remedy for one held a prisoner under sentence of death, claiming his nonidentity with the accused who had been actually tried and sentenced, a claim which has sometimes been made in cases of escapes and recaptures of convicts held under sentence of death. (U. S. v. Santos, 18 Phil. Rep., 66.)
My Filipino associates, learned in the law formerly in force in these Islands, assure me that the power of the judge of the Court of First Instance to suspend the execution of a sentence of death in such cases was so clearly implied in the procedural and substantive law that a question as to his jurisdiction could hardly have arisen. Mr. Justice Torres tells me of a case which came under his personal observation during his service with the audiencia of Cebu. It appears that sentence of death in a case arising in Mindanao having been affirmed by the audiencia of Cebu and the record having been remanded to the judge of the Court of First Instance who imposed the sentence, and the date having been set for execution, some question arose as to whether the sentence could be executed under the conditions then existing. Confronted by the law of necessity, "the great master of things," the trial judge in the exercise of his sound judicial discretion suspended the order fixing the date of the execution for three days, after which the penalty was duly enforced. Thereafter the trial judge, in compliance with the rules of procedure laid down in such cases, officially reported his action to the audiencia, which ordered the report filed with its approval, although, due to the lack of prompt means of communication, this official report was received long after the date originally set for the execution, the date of the order suspending the execution, and the date when the execution actually took place. It must be remembered that in former times the death penalty was usually inflicted as near as practicable to the spot where the crime was committed, and often in remote provinces cut off from communication with either the Chief Executive or the appellate court by days and even weeks of travel. Hence, in the very nature of things. it was necessary to confer upon the local judges charged with the execution of capital penalties such powers as might be necessary to secure the legal rights of prisoners held under sentence of death, and to make certain the orderly and decorous execution of the solemn judgments of the courts imposing such sentences.
Except in so far as it is modified by the provisions of Acts Nos. 451 and 1577 of the Philippine Commission, the law touching the execution of death sentences remains unchanged since the American occupation; unless it be held that it has been repealed in whole or in part, by necessary implication, as a result of organic changes in the principles of government incident to the assertion of American sovereignty over the Islands, or as a result of the adoption of a modified system of procedure in criminal cases, modelled on American and English precedents and set forth in General Orders, No. 58, which, however, contains no provisions expressly dealing with the questions now under consideration.
Let us first examine the express amendments of Spanish law in this regard as found in Acts Nos. 451 and 1577, the pertinent provisions of which are as follows.
Act No. 451, enacted September 2, 1902:jgc:chanrobles.com.ph
"SECTION 1. The use of the garrote as an instrument for the execution of criminals hereafter condemned to death is hereby abolished, except as hereinafter provided.
"SEC. 2. All persons who shall hereafter be finally sentenced to incur the death penalty, except as hereinafter provided, shall be sentenced to be executed by being hung by the neck until dead, and shall be so executed. The execution shall take place at the time and place and by the persons prescribed by the existing law or by such law as may be hereafter enacted.
"SEC. 3. This Act shall not apply to pending prosecutions, nor to prosecutions hereafter instituted for offenses heretofore committed, punishment for which is the death penalty. As to all prosecutions in this section named, the method of execution shall be such as is provided by the existing Spanish law."cralaw virtua1aw library
Act No. 1577, enacted December 18, 1906:jgc:chanrobles.com.ph
"SECTION 1. Hereafter the execution of all criminals finally sentenced to incur the death penalty shall take place inside the walls of Bilibid prison in the city of Manila, and within an inclosure to be erected or arranged for that purpose, if none suitable exists, under the direction of the Director of Prisons, which inclosure shall be higher than the gallows and be so constructed as to exclude entirely the view of persons outside. For the purpose of carrying into effect all such executions of the death sentence the Director of Prisons shall perform the duties prescribed by existing law for sheriffs of the Courts of First Instance; the order of execution shall be directed to him instead of to the sheriff of the court, and he shall return to the court the order of execution, duly certifying thereon that he has complied therewith in the manner prescribed by law for sheriffs of the courts. Hereafter it shall not be necessary for the clerk of the Court of First Instance to witness the execution, nor to certify said act to the court. Such executions shall be conducted by the persons prescribed by existing law for the conducting of executions at said institution or by such law as may be hereafter enacted."cralaw virtua1aw library
"SEC. 3. All provisions of the Spanish Penal Code, of Act Numbered Four hundred and fifty-one of the Philippine Commission, and of any other statute, rule, regulation, or order in conflict or inconsistent with the provisions of this Act are hereby repealed: Provided, That the terms of this Act shall not apply to the Moro Province, in which province the laws in force with respect to executions at the time of the passage of this Act shall continue in full force and effect."cralaw virtua1aw library
It will readily be seen that these statutes leave in full force and effect the "existing law" touching the execution of death penalties, save only in so far as they are "in conflict or inconsistent" therewith. There is nothing in either Act in conflict or inconsistent with the provisions of Spanish law giving to the judges of the Courts of First Instance charged with the execution of death penalties discretionary control over the proceedings, at least to the extent necessary to secure the legal rights of prisoners held under sentence of death, as above set forth. On the contrary, the law expressly recognizes his jurisdiction in the premises. And it will be observed that it places the exclusive control of the person of the accused and of the execution of the death penalty in the hands of the judge of the court and his ministerial officer, the sheriff. "For the purpose of carrying into effect" the execution of the death penalty the Director of Prisons performs "the duties prescribed by law for sheriffs of Courts of First Instance." He acts exclusively upon the order of the court, and his return "certifying compliance therewith in the manner prescribed by law for sheriffs of the courts" is made to the court itself. Neither the person of the prisoner nor the conduct of the proceedings is turned over to the executive authorities as such, so that the execution of a death sentence may legally take place wholly without their knowledge or intervention.
Having examined the express provisions of law as found in the statute books, and having glanced at the practice and procedure in force for more than half a century (at least since the year 1849, the date of the above mentioned Royal Decree); and not having found anything therein which appears to sustain the Attorney-General’s contentions as to a lack of legal power in the respondent judge, I come now to consider those contentions which rest upon the theory of the repeal, by necessary implication, of any provisions of Spanish procedural law conferring such powers on the courts.
It is said that the exercise of such power by the courts would amount to an invasion of the pardoning power of the Chief Executive under American sovereignty; and further, that it would be in direct conflict with the well recognized principles of practice and procedure in the courts of the United States and England, upon which the present system of criminal procedure in these Islands is modeled.
These contentions may well be considered together, since the reasoning and citation of authority for or against one proposition will, speaking generally, serve a like purpose as to the other.
I confess I am wholly unable to comprehend an argument which inveighs against the concentration of the power of government in one hand, whereby the "common people" are "governed by the whim or caprice of one man;" which lauds the system whereby, under prescribed law, the powers of government are "taken from the hands of one man and distributed into separate and distinct departments;" which deprecates the invasion by one department of the government of the functions of the other; which deplores the "days in the Philippines" when "one man made the law, interpreted the law and enforced the law;" which reflects upon the former system of government for its alleged failure to maintain a strict line of demarcation between the judicial and administrative functions of the government; and concludes by proposing to take the jurisdiction and legal power to adjudicate legal rights asserted by a prisoner and recognized in the substantive law of the land out of the hands of the courts, who were clothed with such jurisdiction under the Spanish law, and to vest the exercise of these peculiarly judicial functions in the Chief Executive as a matter of mere grace or executive clemency.
To support such a contention by the assertion that the courts "have no monopoly over the fountains of justice," and that it is not to be presumed that the Chief Executive, in the exercise of his powers to extend executive clemency by the grant of pardons, will be any less likely than the courts themselves to do justice and to adjudicate righteously the prisoner’s claim of a legal right, is, as it seems to me, to deny the very premises upon which those who have contended for a strict separation of the functions of government into separate departments have always rested their contentions.
Whatever defects may be attributed to the Spanish system of procedural law in force in these Islands at the date of the American occupation, I doubt much that there is any just ground for criticism on the ground of a failure to make due provision for the strict demarcation of the line marking the separation of the judicial and administrative branches of the government. And however this may be, it is certain that the former law clearly recognized the distinction between the functions of the two departments in relation to claims of right on behalf of even the most hardened criminal convicted of the commission of a capital offense, limiting the powers of the executive to the exercise of acts of grace and clemency; and prescribing the duty of the courts to adjudicate and determine all questions of legal right which might properly arise in the course of the trial, conviction and execution of the accused.
I think I have already demonstrated the lack of foundation, under both Spanish and American statute law, of the contentions of the Attorney-General, in so far as they are based upon the assumptions (again making use of the language of the dissenting opinion) that after final judgment in a capital case, "its execution has passed into the executive department of the Government," and that, "the moment a sentence in a criminal case becomes final, the judicial department has lost its control over the person of the defendant." I shall, therefore, content myself on this branch of the argument by a reference to the statutory provisions hereinbefore cited.
The lack of substance in the contentions of the Attorney- General, based on the fear of possible conflicts in the exercise of the power to suspend the execution of capital sentences by both the executive and judicial departments of the Government, must become apparent upon a moment’s consideration of the fundamental difference, already indicated, between the nature, origin and mode of exercise of this power by the judiciary and by the Chief Executive. The power of the Chief Executive to grant reprieves is merely an incident of the pardoning power. It is always an act of grace. The Chief Executive never orders the execution of a death sentence. As we have seen, the power so to do is vested exclusively in the courts. His authority in the premises, unless he remits the penalty outright, is limited to the extension of the time which may be fixed for the execution by an order of the court. If thereafter the convict is finally executed, the execution takes place, not by virtue of the order of the Chief Executive extending the time already fixed therefor, but by virtue of the order of the court as extended by him.
No one questions that the pardoning power of the Chief Executive is above and beyond control by the courts, so that no order of the court directing the execution of a death sentence can be enforced so long as it is reprieved, respited or stayed by an appropriate executive order.
On the other hand, since the intervention of the Chief Executive is strictly an act of grace, there can be no ground of complaint on his part, or of conflict with his authority, should the courts see fit to extend the time set for the execution beyond the time to which he may have thought proper to respite it. His intervention is not for the purpose of hastening the date of execution. It is purely an act of executive clemency; and while he himself, having once granted a reprieve, may be unwilling to again extend the time set in the court’s order, he can have no well founded objection to a respite or extension of the time to which he may have suspended the execution, if granted by the court itself.
It follows that in any case wherein both an executive and judicial suspension of an order fixing the time for the execution of a death penalty have been allowed, there can be no conflict of authority if full force and effect be given to both of the orders suspending the execution, which in that event will take place on the last date to which the time set in the original order is suspended by either executive or judicial respite.
A somewhat extended examination of English and American authorities, both textbook and judicial, has developed nothing which appears to me to support the contentions of the Attorney-General in this regard.
That the power to suspend the execution of sentence, either before or after judgment, belonged to every trial court, as "of common right" seems to have been universally recognized at the common law, at least in relation to capital cases. (2 Hale P. C., chap. 58, p. 512; 1 Chitty Crim. Law, 1st ed., 617-758; Hawke P. C., Book 2, chap. 51, par. 8; Blackstone, Book 4, chap. 31.)
Thus Blackstone says: "A reprieve, from .reprendre (to take back), is the withdrawing of a sentence for an interval of time; whereby the execution is suspended."cralaw virtua1aw library
And in his discussion of judicial reprieves he says: "This may be, first, ex arbitrio judicis (at the will of the judge); either before or after judgment; as where the judge is not satisfied with the verdict, or the evidence is suspicious, or the indictment is insufficient, or he is doubtful whether the offense be within clergy; or sometimes if it be a small felony, or any favorable circumstances appear in the criminal’s character, in order to give room to apply to the crown for either an absolute or conditional pardon. These arbitrary reprieves may be granted or taken off by the justices of goal delivery, although their session be finished, and their commission expired; but this rather by common usage, than of strict right."cralaw virtua1aw library
And again: "Reprieves may also be ex necessitate legis (from legal necessity): as, where a woman is capitally convicted, and pleads her pregnancy; though this is no cause to stay the judgment, yet it is to respite the execution till she be delivered."cralaw virtua1aw library
And again: "Another cause of regular reprieve is, if the offender becomes non compos between the judgment and the award of execution: for regularly, as was formerly observed, though a man be compos when he commits a capital crime, yet if he becomes non compos after, he shall not be indicted; if after indictment, he shall not be convicted; if after conviction, he shall not receive judgment; if after judgment, he shall not be ordered for execution: for "furiosus solo furore punitur" (a madam is punished by his madnesss alone), and the law knows not but he might have offered some reason, if in his senses, to have stayed these respective proceedings." (Cooley’s Blackstone, 4th ed., Vol. II, pp. 394-5.)
But we are told that the doctrine thus announced by the great common law authorities "is an antiquated, threadbare doctrine" which can have no weight in the disposition of the case now before us.
I think, however, that the bare assertion of that proposition is not sufficient, without citation of abundant authority, to sweep away a doctrine so deeply imbedded in the system of criminal procedure upon which the modern system now in force in England and the United States has its solid foundation; and this especially when it is made for the purpose of denying the existence of legal powers in the courts in these Islands on the ground that their exercise is in conflict with the practice and procedure in the United States. No authority has been cited, either textbook or judicial, which denies the continued existence of the common law doctrine in full force and vigor in American jurisprudence in so far at least as it relates to the powers of the courts to suspend sentences in capital cases. On the contrary, as I shall endeavor to demonstrate, the highest authorities, both textbook and judicial, appear to be in substantial agreement as to the continued existence of such powers in the courts down to the present day.
No writer upon criminal practice and procedure in the United States is entitled to greater deference and respect than Bishop, and perhaps the following citation from the last edition of his work on "Criminal Evidence, Pleading and Practice," published in the year 1896, should be sufficient in itself to sustain my position in this regard.
"Respite — Reprieve. — The law of respite or reprieve appears to apply only to capital sentences. The two terms are nearly synonymous. Either signifies the suspension. for a time, of the execution of a sentence which has been pronounced. Every court ’which,’ says Hawkins, ’has power to award an execution,’ may grant it of its own sentences. In England, it appears, a reprieve may be ordered by the judges even in vacation; and perhaps the same may be done under the common law of this country. The crown, also, has the power of reprieve in England; and so have our executives, under some, at least, of the constitutions. It is a part of the power of pardon, and included therein. If a statute requires a respite, it becomes a right in the prisoner." (Bishop’s New Criminal Procedure, Vol. II, par. 1299.)
In support of these various propositions, abundant citations of authority, ancient and modern, are to be found in the notes attached to the text.
A great array of cases, dealing with the general subject of the power of the courts to suspend sentences and the execution of sentences, will be found collated in the exhaustive notes to two very recent cases, in the Lawyers Reports Annotated (new series, vol. 33, p. 112, and vol. 39, p. 242). I have examined most, if not all of these cases which are to be found in our library, and I think I have examined all the cases submitted by counsel or in the consultation chamber. I have found none which questions the doctrine laid down by Bishop as to the power of the courts in capital cases. On the contrary, it appears to be recognized as in full force and effect by all the courts which have dealt with the subject, except in so far as it has been modified in a few States by express constitutional or legislative enactment. It would be a mere affectation of learning and research to set out at length the numerous cases on the subject which can readily be found in the abovementioned reports, and to do so would extend this opinion to an intolerable length. I shall content myself therefore with a few citations bearing directly on the questions now under consideration.
The supreme court of Tennessee, in the case of Fults v. State (34 Tenn. 2 Sneed, 234), in ruling that the courts of that State "have control of criminal cases" after final judgment so far as necessary to suspend the execution thereof, "sufficient reason therefor appearing," observed:jgc:chanrobles.com.ph
"There are many cases, no doubt, where it is necessary and proper to suspend the execution of the final judgment. For instance, where the prisoner has become non compos between the judgment and the award of execution; or, in order to give room to apply to the executive for a reprieve or pardon: or, in special cases, where the necessity and propriety of such course are rendered evident to the mind of the court. (Allen v. State, Mart. & Y., 297; 4 Bla. Com., 395.)
"In Allen’s case it was considered that a right to petition the executive for a pardon was a constitutional right, and as the prisoner was convicted of manslaughter, and sentenced to be branded in the hand, under the law then in force, time was allowed him, until the next term, to petition for a pardon."cralaw virtua1aw library
In dealing with the alleged conflict of powers between the judicial and executive departments of the government, involved in the exercise by the courts of that State of the power to suspend sentences after conviction, the New York Court of Appeals, in the case of People v. Court of Sessions of Monroe County, decided in 1894 (141 N. Y., 288), held as follows:jgc:chanrobles.com.ph
"The power to suspend sentence and the power to grant reprieves and pardons, as understood when the constitution was adopted are totally distinct and different in their origin and nature. The former was always a part of the judicial power; the latter was always a part of the executive power. The suspension of the sentence simply postpones the judgment of the court temporarily or indefinitely, but the conviction and liability following it, and all civil disabilities, remain and become operative when judgment is rendered. A pardon reaches both the punishment prescribed for the offense and the guilt of the offender. It releases the punishment, and blots out of existence the guilt, so that in the eye of the law, the offender is as innocent as if he had never committed the offense. It removes the penalties and disabilities, and restores to him all his civil rights. It makes him, as it were, a new man, and gives him a new credit and capacity. (Ex parte Garland, 71 U. S., 4 Wall., 333, 18 L. ed., 366; United States v. Klein, 80 U. S., 13 Wall., 128, 20 L. ed., 519; Knote v. United States, 95 U. S., 149, 24 L. ed., 442.)
"The framers of the federal and state constitutions were perfectly familiar with the principles governing the power to grant pardons, and it was conferred by these instruments upon the executive with full knowledge of the law upon the subject, and the words of the constitution were used to express the authority formerly exercised by the English crown, or by its representatives in the colonies. (Ex parte Wells, 59 U. S., 18 How., 307, 16 L. ed., 421.) As this power was understood, it did not comprehend any part of the judicial functions to suspend sentence, and it was never intended that the authority to grant reprieves and pardons should abrogate, or in any degree restrict, the exercise of that power in regard to its own judgments. that criminal courts had so long maintained. The two powers, so distinct and different in their nature and character, were still left separate and distinct, the one to be exercised by the executive, and the other by the judicial, department. We therefore conclude that a statute which, in terms, authorizes courts of criminal jurisdiction to suspend sentence in certain cases after conviction, — a power inherent in such courts at common law, which was understood when the constitution was adopted to be an ordinary judicial function, and which, ever since its adoption, has been exercised by the courts, is a valid exercise of legislative power under the constitution . It does not encroach, in any just sense, upon the powers of the executive, as they have been understood and practiced from the earliest times."cralaw virtua1aw library
The power of the courts to reprieve a prisoner, after sentence on a capital conviction, was discussed in Miller’s Case (9 Cow., N. Y., 730), in which it was held that the court had power to stay the execution in a capital case, notwithstanding the power to grant reprieves and pardons rested with the executive. In that case the court said:jgc:chanrobles.com.ph
"Far be it from me to call in question the wisdom of placing the power of granting reprieves and pardons in the executive. All that I contend for is, that although he indubitably has the ultimate or superior power, and that there is no power which can prevent him from reprieving, yet that there is nothing in the Constitution annulling the qualified limited power of the judges. Constitutions, like laws, should receive such a construction as will advance the remedy and suppress the mischief. The object of this provision is to enable the executive, in all cases, to prevent injustice. The limited power of the judges is only to remove an obstruction of their own creating, in the way to the mercy seat — a power necessary to enable the executive to exercise his prerogative upon every suitable occasion — a power which has been sanctioned by the experience of our ancestors for ages, and which was the offspring of the imperious dictates of justice and humanity."cralaw virtua1aw library
The supreme court of Indiana, in the case of Parker v. State, 1893 (23 L. R. A., 859), solemnly reversed a ruling in a former case (Butler v. State, 97 Ind., 373), based on the theory of conflict of powers in the executive and judicial departments, to the effect that "Where the constitution confers upon the executive the exclusive power to remit fines and forfeitures, and to grant reprieves, commutations, and pardons, a statute authorizing the supreme court, on an appeal from a judgment of conviction, to suspend sentence of death and to remit forfeitures, is unconstitutional." The doctrine thus announced in the former case was repudiated in the following terms:jgc:chanrobles.com.ph
"We are aware that a different conclusion was reached by this court in the case of Butler v. State (97 Ind., 373), but we cannot give our assent to the conclusion reached in that case. The error in that case consists in assuming that the granting of stay of execution by this court in case pending before it is a reprieve within the meaning of section 17, article 5, of the Constitution of the State. A conclusion based upon an erroneous premise is seldom, if ever, correct. In so far as that case conflicts with the conclusion reached here, it is modified."cralaw virtua1aw library
Citing a number of authorities, the court held that: "Granting a stay of execution by an appellate court pending an appeal in a capital case is not a reprieve within the meaning of a constitutional provision giving to the governor the power to grant reprieves; and a statute authorizing such stay declares the inherent power of the court, independent of any statutory provision."cralaw virtua1aw library
In the recent case of State v. Abbott, decided February 2, 1911 (33 L. R. A., N. S., 112), in which the supreme court of South Carolina denied the power of the trial courts to suspend sentences of imprisonment indefinitely or on good behavior, the court nevertheless said, after citing the common-law rule as stated by Blackstone:jgc:chanrobles.com.ph
"At common law there was no appeal, the trial court had no power to grant new trials in cases of treason and felony, and the punishments were often by branding or other physical infliction; and hence the temporary suspension of the sentence which would otherwise be fully suffered was necessary, to the end that the convict might not suffer the penalty without having an opportunity to apply for pardon or other relief provided by law. On this principle of implied power arising from necessity, it was held in this state to be within the power of the court to postpone until the next term of the court the imposition and execution of the sentence of burning in the hand, provided by law, so that the convict might apply to the governor for a pardon. (State v. Frink, 2 Bay, 168.) But the common-law power to suspend sentence has been expressly held in this state to be limited by this principle of necessity, as having application only to cases where but for a suspension, the convict would irretrievably lose some legal right. (State v. Chitty, 1 Bail. L., 379.)"
In the very recent case of Fuller v. Mississippi, decided January 15, 1912, and reconsidered on a suggestion of error March 11, 1912 (39 L. R. A., 242), wherein execution of a prison sentence had been suspended by the trial court after conviction and after the judgment imposing sentence had become final, the court, while deciding that there is no authority of law in that State for the indefinite suspension of the execution of prison sentences by the trial courts, carefully distinguishes such cases from the cases of judicial respite or reprieve in capital cases mentioned by Chitty and Blackstone, and after an extended discussion of the doctrine of judicial reprieves or respites observes:jgc:chanrobles.com.ph
"As all of the early cases which have come under our observation, upholding this power of the court, were cases wherein the death penalty was imposed, it may be that the law relative thereto applies only to capital cases. It is unnecessary, however, for us to so hold here, for the reason that the power to suspend the execution of a sentence was never exercised or claimed by the courts at common law, as we have heretofore stated, except when necessary to prevent an abuse of their process, or to prevent irreparable injustice from being done a defendant."cralaw virtua1aw library
Finally the doctrine supported by numerous citations of authority is thus summed up in 12 Cyc., 790:jgc:chanrobles.com.ph
"The term ’reprieve’ signifies the withdrawing of a sentence for an interval of time, which operates in delay of execution. At the common law, reprieves after judgment were of three kinds: (1) At the pleasure of the crown; (2) in the discretion of the court; and (3) of necessity, which latter was in the case of a woman convict alleging pregnancy when called for sentence. In the United States, unless the terms on which a stay of execution may be granted are definitely fixed by statute, the court may stay execution whenever it considers that under the circumstances of the case such action would be right and proper. Thus a stay may be granted to allow the accused opportunity to apply for a pardon, to procure a writ of error, or to secure a certificate of probable cause from the trial judge."cralaw virtua1aw library
I might extend the citations indefinitely, but I think I have set out enough to make it clear that there is no such recognition by either textbook or judicial authority in the United States of any peculiarly American rule of practice and procedure, or of any peculiarly American doctrine touching the separation of the various departments of the Government as will sustain the contention that the power reposed in the Courts of. First Instance of these Islands to grant temporary judicial reprieves or respites of the execution of death penalties, prior to the American occupation, has been abrogated, annulled or destroyed by necessary implication as a result of the mere fact of a change of sovereignty, and the introduction of a system of procedure and practice modeled on English and American precedents.
It will perhaps be objected, that the more recent decisions from which the above citations are taken, were rendered in cases involving the suspension of execution of prison sentences, or dealt with suspensions granted after conviction and before the judgment became final, so that they are not direct authority for the respite of capital penalties after final judgment. To such objection I would reply:chanrob1es virtual 1aw library
First. That our attention has not been called to any recent cases dealing with the suspension of the execution of capital sentences except one from the State of Oklahoma, in which State it appears that, contrary to the practice prevailing in most of the other States of the Union, the granting of stays of execution of "judgments of death" by the courts, or by any officer of the State other than the governor, is prohibited by express legislative enactment even in cases of appeals. (Opinion of the judges, 3 Okla. Crim. Rep., 315.) There is no express legislation in this jurisdiction conferring exclusive jurisdiction to grant reprieves, respites or stays of execution upon the Chief Executive.
Second. That the ratio decidendi of the cases cited and of the multitude of cases decided by the various courts of the United States wherein it is quite uniformly held that permanent or indefinite suspensions of prison sentences by the courts constitutes an invasion of the prerogatives of the pardoning power of the Chief Executive, while temporary suspensions of such sentences do not constitute such an invasion, whether granted before, or after conviction, or before or after imposition of sentence, clearly discloses that there is no ground for the contention of the Attorney-General based on an alleged invasion of the prerogatives of the Governor-General of the Philippine Islands by the temporary suspension of execution of a death penalty.
Third. That I have selected for citation the two most recent reported cases touching the suspension of execution of sentences imposed in criminal cases (State of South Carolina v. Abbott (supra), decided in 1911, and Fuller v. State of Mississippi (supra), decided in 1912, because in both cases it is clear from the reasoning o-