Section 4 of chapter 142 of the Public Acts of 1905, p. 350, as subsequently amended, provides that any criminal court, in any case within its jurisdiction, or the judge who held such court upon a hearing after the adjournment of the term, may adjourn the case or suspend sentence and commit the accused to the custody of a probation officer, either regularly appointed *Page 503 or specially designated, for such time, not exceeding one year, as might be fixed. Public Acts of 1911, p. 1362, Chap. 106, § 1. The plaintiff's conviction, sentence to imprisonment for one year and payment of fine, immediately paid, and commitment to the custody of the probation officer for the term of one year, after an order of suspension of execution of the sentence of imprisonment had been entered, took place while this statute was in effect.
Although the provision referred to is inartificially framed, it is apparent from the context, and especially that contained in § 5, that, interpreted according to its true meaning and intent, it confers upon the courts power to either suspend sentence in the strict meaning of that phrase, which implies that sentence is not pronounced, or to suspend the execution of a sentence pronounced. This, counsel for the petitioner does not question. He does not complain of any irregularity in the judicial proceedings. His sole contention is that the judgment of the court had been satisfied, before the commencement of these proceedings, by the passage of one year from the date of imposition of sentence, during all of which period the petitioner was either in the custody of the probation officer or in jail, so that his client was and is entitled to his enlargement. The State's Attorney, representing the respondent, insists that the plaintiff will not have satisfied the sentence of imprisonment imposed upon him until one year from the time that the order of suspension of execution was revoked and the mittimus to the respondent issued, and the petitioner shall have spent one year thereafter in jail.
These conflicting claims arise from a fundamental difference of view as to the meaning and intent of our probation law, of which the section referred to forms a part. In the view of the petitioner, the secondary *Page 504 commitment to the custody of the probation officer provided for by the statute, where sentence to imprisonment is pronounced, is a substitute or alternative for the primary commitment to jail or to prison embodied in the sentence, so that the period of the former counts in reckoning the period of the latter. The view of the State's Attorney is that the probation period stands wholly unrelated to a satisfaction of the sentence as such, and can have no effect upon the sentence save as it may, if its purpose is fulfilled by reform of life, lead to an exemption from its operation.
One of the difficulties with the plaintiff's view is that it ignores the purpose of the probation commitment, and mistakes its true character. It is not ordered for the purpose of punishment for the wrong for which there has been a conviction, or for general wrongdoing. Its aim is reformatory and not punitive. It is to bring one who has fallen into evil ways under oversight and influences which may lead him to a better living. The end sought is the good of the individual wrongdoer, and not his punishment. Underlying the act of commitment is the hope that it may prove that punishment will be unnecessary, and that its stigma may be avoided. A sentence partakes of an essentially different character. It is the judgment of the court formally pronounced "awarding the punishment to be inflicted." Black's Law Dictionary (2d Ed.) 1071. It deals out punishment, and one of its underlying aims is to cause its subject to suffer for the wrong he has done.
The suggestion that the probation commitment partakes of a penal character because it involves an award of custody, a restraint of liberty of conduct by the necessity of observance of prescribed rules and regulations, and the creation of a right and power of supervision in another, is one which overlooks the end sought and the fundamental character of the limitations upon *Page 505 personal independence which are involved. Restraints upon individual freedom of action are not by any means all penal. The youth at school is under restraint. He comes under the duty of obedience to the rules prescribed for his well being and wholesome development. He is subject to the supervision of a superior, and yet his school life is not one of punishment. There are limitations upon the right of individual freedom of action born of social conditions which are constantly recognized. Their character is not penal where the purpose of their imposition is not punitory.
The nonpenal character of the probation commitment under our law is plainly recognized in its provisions wherein a suspension of the execution of the sentence imposed is provided for where a commitment to the custody of a probation officer is made, and a revocation of the suspension provided for when imprisonment in conformity to the sentence is to begin. The sentence, to use the words of the statute, does not come to have full force and effect until this revocation is made. A sentence unexecuted entails no punishment upon the offender. It is only a judicial pronouncement. It is the carrying into effect of the sentence, by process providing for its execution, which results in punishment. A suspension of execution necessarily involves a suspension of the penal consequences of the judgment. Suspension is altogether inconsistent with operation. It implies a stay — a cessation of operation. The position of a person under sentence, but committed to the care of a probation officer, as described in the language of the statute, involves the conception of a ceasing of the operation of the sentence, and not operation of the sentence proceeding simultaneously with or by means of the probation process. The statute plainly contemplates nothing of the latter sort. It as plainly contemplates that proceedings to secure punishment shall not *Page 506 be in force during the period when the probation process is in operation, and that execution of sentence will not run unless and until that process shall have failed to accomplish the desired results.
It is suggestive of the law's conception of the relation of a probationer to the probation officer, that in § 9 of the statute it is provided that the former be considered as the latter's ward. The officer is thus represented as standing, in the eye of the law, in the position of a guardian and not that of a keeper.
The appellant, in support of his prayer for release, claims that the action of the court in committing him to the care of the probation officer, if the period of such commitment was not to be reckoned as in satisfactionpro tanto of the sentence of imprisonment, was in excess of its authority as being in its essence an exercise of the pardoning power. In aid of this contention we are referred to several cases, of which State v. Sturgis,110 Me. 96, 85 A. 474, is a good example, wherein it has been held, in substance, that courts are powerless after sentence to interfere with the execution of the sentence by way of its commutation, the exoneration of the prisoner therefrom, or modification of its terms. These cases all dealt with the inherent power of courts in the absence of enabling legislation. Here the Superior Court acted in conformity with legislation which expressly confided to it the authority it exercised. The question presented to us is, therefore, in no sense that passed upon in the cases referred to. It does not concern the inherent power of the Superior Court, but its power under the statute. The terms of the statute are, as we have seen, adequate to justify the action taken. If that action was unlawful, it could be for no other cause than that the General Assembly was powerless to legislate as it did. The question for our determination is thus carried back to the statute, and concerns *Page 507 the competency of the General Assembly to enact it.
In passing upon this question it is important that we gain a correct conception of the character of that which the statute authorizes the courts to do in the matter of stays of execution. In no true sense is it an exercise of the pardoning power. The provisions of the statute, like those authorizing releases from imprisonment on parole, merely prescribe conditions attaching to the punishment authorized and inflicted. The General Assembly defines the punishments which may be imposed, and it may gather around those punishments such incidents or conditions as it may deem wise. Statutes which prescribe these incidents or conditions, although general in their application, are dealing with the punishment, and their provisions enter into and form a part of it. So it is that every sentence to imprisonment for a term carries with it and has incorporated into it by necessary implication those provisions whose operation may result in a modification of its letter. When some such provision results in a release on parole, or stay of execution with a probation commitment, that result does not have its source in an exercise of the pardoning power. It comes in the due course of the operation of the sentence under the provisions of law which prescribe what it may be and its incidents. In this view of the matter there can be no doubt as to the competency of the General Assembly to legislate as it did in the probation statute, and to attach to or incorporate into punishments authorized to be imposed the conditions it embodies.
We need not stop here. Let it be assumed that there exists, in a stay of execution which may be made permanent, the essence of a remission of sentence. We are then unable to discover good reason, constitutional or otherwise, why courts of criminal jurisdiction *Page 508 may not, by legislation, be given control over their own judgments for the period of one year, so that within that period they may be modified or erased. That, at most, is all that the stays provided for in the statute amount to. The power exercised, even in that aspect of it, does not constitute a pardon or commutation. It is in effect only a change of judgment, and for that reason a radically different thing from a pardon or commutation, which import that the sentence stands while the sentenced person is relieved from its operation upon him. The gist of that which the statute authorizes is that the pronouncement of the court may be changed, not that a way of escape from it is provided.
We have no occasion to consider the further question, suggested by the argument in favor of the plaintiff, whether it is not competent for the General Assembly to confer upon the courts a power of pardon.
We are of the opinion that the period during which the petitioner was under commitment to the custody of the probation officer is not to be counted as time during which he was undergoing the punishment imposed in the sentence. Execution of the sentence did not come into operation until revocation of the suspension of execution was made on January 14th, 1914, and the year for which he was sentenced to imprisonment began to run from that date. It follows that he has not served out his sentence, and is not entitled to enlargement from the respondent's custody under the mittimus in his hands.
Judge Simpson is advised to render judgment remanding the petitioner to the custody of the respondent.
Costs in this court will be taxed in favor of the respondent.
In this opinion THAYER and WHEELER, Js., concurred.