This is not a case where the imposition of sentence was suspended, so as to create an interregnum between the conviction and the final judgment of the court. In this case final judgment and sentence of fine and imprisonment in the common jail for one year was pronounced on April 24th, 1913. The fine was paid, and, except for the Probation Act of 1905 as amended, nothing would have remained except to do execution of the jail sentence. This statute authorizes the criminal courts to commit a convicted criminal to the charge of a probation officer upon conditions which contemplate his absolute release in case he observes the terms of his probation and conducts himself to the satisfaction of the court. The Act has been practically construed as authorizing the court to commit on probation either before or after the sentence. If done before the imposition of the sentence which would otherwise have been required by law, the probation commitment is in the nature of an interlocutory order specially authorized by the Act, and there is no logical or constitutional reason why such an order may not thereafter be revoked and a final judgment entered. But when the court first pronounces a final judgment and sentence including imprisonment, and then suspends the execution of the jail sentence and commits the convicted and sentenced criminal to a probation officer on conditions which contemplate that, at the pleasure of the court, the original sentence may never be enforced at all, very important questions arise as to the character of such an order of commitment. Is it an authorized alternative execution of the sentence? Or is it, as the opinion holds, no execution at all, because not a punishment? And if the statute purports to authorize the criminal courts to let a convicted and sentenced criminal go free of any execution of his sentence upon condition of *Page 510 his good behavior while in the custody of a probation officer, is it not then in violation of Article Second of the Constitution of Connecticut, as an attempt to confer the pardoning power on the courts?
I think the probation commitment is in alternative execution of the jail sentence already pronounced, and is a punishment for the offense committed. It is founded on the conviction, and in practice is evidenced by a formal mittimus. From the standpoint of the probationer there can be no question but that it is penal in character. He is under the surveillance and in the custody of an officer of the law, under such regulations as the court sees fit to impose. He is required to observe these regulations, report to the officer as directed, and to maintain a correct life, being all the while subject to arrest without warrant for failure to do so. His description, sufficient for identification, and his history while under probation, are part of the records of the criminal court in which he was convicted, and of the Connecticut prison association. Public Acts of 1905, p. 350, Chap. 142; Public Acts of 1909, p. 1086, Chap. 161. This amounts to a restraint of personal liberty imposed by the judgment of a court for the commission of a criminal offense. It is a "penalty for transgressing the law," which is our Connecticut definition of punishment in criminal law. State v.Smith, 7 Conn. 428, 431.
It does not quite meet the issue to point out that the purpose of the Act is the good of the wrongdoer and not his punishment; as if these two purposes were inconsistent. They are not inconsistent. On the contrary, they are two of the five main objects of penal justice as laid down by Bentham: namely, example, reformation, incapacitation, satisfaction to the person injured, and economy to the State. Modern penology emphasizes the second and fifth of these purposes, and *Page 511 the Act in question aims at these results in the same general way as the indeterminate sentence: the Act authorizing the commitment, of persons convicted of certain State prison offenses, to the State reformatory, and the parole of prisoners in these institutions after serving a minimum term. In particular it enables the courts to discriminate between degrees of criminality which cannot be distinguished by statute, and to place a convicted criminal, either before or after sentence, in a situation not very different from that of a convict on parole. If the probation commitment comes after a jail sentence, it must necessarily operate as a stay of execution conditional on the good behavior of the convict. But it is not, as the court treats it, a complete stay of all execution of the sentence, for it is accompanied by the imposition of a less severe restraint of liberty. The element of reformation is emphasized, and those of example and incapacitation are minimized, though still present, and the result is a punishment exhibiting every essential purpose of penal justice. On this ground alone, I think that the Act, so far as it permits a convicted offender to be committed to a probation officer after sentence to jail, should be construed as authorizing an alternative execution of the sentence during good behavior, and not as authorizing a complete and possibly permanent stay of execution of such sentence.
Such a construction has, moreover, the advantage of being consistent with the policy of our criminal law as evidenced by other statutes relating to the same general subject-matter. The situation of a probationer under an unexpired sentence of imprisonment in jail, is not unlike that of a paroled convict, although the paroled convict is less restrained of his liberty, for he is released, conditionally, on his own recognizance, while the probationer remains in charge of an officer *Page 512 of the law. Yet our statutes treat the sentences of paroled convicts as still in process of alternative execution while they are out on parole, and provide that, if returned to prison for violation of parole, they may be imprisoned for the unexpired terms only of their sentences. General Statutes, § 1539; Public Acts of 1909, p. 1087, Chap. 162, § 12.
I also think that the construction adopted by the opinion would make the statute unconstitutional as purporting to authorize the criminal courts, after final judgment and sentence, to completely suspend the execution of the sentence with a view to never enforcing it, in case the criminal observed the conditions of his probation. My views on this branch of the case cannot be better expressed than in the following quotation from a recent decision of the Supreme Judicial Court of Maine: "Again, it is a well recognized principle, that after a sentence has been imposed the court has no authority to relieve the convict from its execution. The authorities draw a clear distinction between the suspension of the imposition of a sentence and the indefinite suspension or remission of its enforcement. There is a conflict of authority as to the power of the court after a conviction to indefinitely postpone the imposition of the punishment prescribed by law, but however the courts may differ as to such power, it is well established that the court cannot, after the judgment in a criminal case is rendered and the sentence pronounced, indefinitely postpone the execution of that sentence, or commute the punishment and release the prisoner therefrom in whole or in part. Of course it is not to be understood that the court has not the power to temporarily postpone the execution of its sentence pending an appeal and other proceedings to obtain a new trial or review of the judgment, and in cases where cumulative sentences are imposed, and perhaps in *Page 513 some cases of great necessity and emergency. And the power of the court to correct errors in its judgment, and to change its sentence, during the term at which it is imposed and before its execution has begun, is another and different matter. The act which the authorities hold that the court has not the power to do, is . . . the act done for the purpose of exonerating the convict, in whole or in part, from the final and lawful judgment and sentence of the law which has been imposed upon him. That is the power to pardon, to commute penalties, to relieve from the sentence of the law imposed as punishments for offenses against the State, which power has not been given to the courts, but confided exclusively to the Governor of the State, with the advice and consent of the council." State v.Sturgis, 110 Me. 96, 100, 85 A. 474.
See, also, Tuttle v. Lang, 100 Me. 123, 60 A. 892;Ex parte Clendenning, 22 Okla. 108, 97 P. 650, 19 L.R.A. (N.S.) 1041; In re Webb, 89 Wis. 354,62 N.W. 177, 27 L.R.A. 356; In re Strickler, 51 Kan. 700,33 P. 620.
In all of these cases the sentence of imprisonment was first pronounced, and then its execution suspended either with or without a time limit and upon a condition of good behavior such that it might be the pleasure of the court never to direct execution, so that the suspension had the practical effect of a conditional pardon. In every case it was held that such an order of suspension was void as beyond the power of the court, that the period of imprisonment commenced in contemplation of law at the date of the sentence, and that the prisoner could not be detained after it expired. It seems clear that if our Probation Act must be construed as authorizing our criminal courts to grant conditional pardons, by completely suspending execution of jail sentences, upon terms such that the convict *Page 514 may go free in case he observes the conditions of his probation, then the Act is unconstitutional under the doctrine of Norwalk Street Ry. Co.'s Appeal,69 Conn. 576, 37 A. 1080, 38 id. 708, and many other cases, as attempting to delegate to the courts a nonjudicial function. The pardoning power is historically, and in principle, the antithesis of legal justice. It is an act of grace, and a negation of the sentence of the law. "The pardoning power is essentially of a political nature. Judicial officers are to do justice. Mercy is an act of policy or grace." Baldwin, American Judiciary, 52.
For the reasons indicated, I think that the commitment to the probation officer after jail sentence is in the nature of an execution of the original sentence by a mitigated punishment, and that the statute cannot be otherwise construed consistently with our Constitution.
I agree that the legislature may by statute annex implied conditions to the penal sentences of the courts; if so, the sentence in this case may be in effect, though not in form, a sentence to one year in jail, or to commitment to the probation officer, if the court should so order. But there must be some relation of time between the jail sentence and the commitment. Evidently the legislature did not intend that one sentenced to jail for thirty days should be committed to a probation officer for eleven months and then sentenced to jail for thirty days, or that one sentenced to jail for a year should be committed to a probation officer for one month only and then set free. Yet if the time spent in the custody of the probation officer is not in execution of the original sentence, either of these results is permissible.
In this opinion RORABACK, J., concurred. *Page 515