If the decision in State ex rel. Tingstad v. Starwich,119 Wn. 561, 206 P. 29, 26 A.L.R. 393, holds what the majority now says it holds and is controlling here, then, in my judgment, it should be modified. But, as I read that case, the argument is directed to, and the decision is based upon, an erroneous order of suspension made by a court of general jurisdiction and not upon a void order. *Page 425
We are dealing in this case with the judgment of a justice of the peace, who made no attempt in any particular to comply with the statute authorizing suspensions, by limiting the effect of his order until it might be ordered otherwise by the court and by not placing the sentenced person in charge of a parole or peace officer under any terms or at all, but permitting such sentenced person to immediately go free of surveillance, responsible to no one save himself, with full permission to comport himself as he saw fit.
Taking into consideration all of the terms of the statute and the purpose for which it was enacted, we should hold that a justice of the peace may suspend a sentence only on the conditions which the legislature has provided, and failing to comply with such conditions, the attempt to suspend is utterly void and of no effect. In this case, at the moment the judgment was entered or on any day subsequent during the period of sentence, the suspension being void, the sentenced person might have been lawfully committed to jail without a hearing. He did not abscond or absent himself from the jurisdiction of the court or do any act to prevent the execution of the sentence.
Whether the statute of limitations would ever run against such a suspended judgment seems, under the language of the Tingstad case, to be doubtful, and if the statute is not tolled then the sentence becomes perpetual. Therefore, the sentenced person should not be held under menace of execution of the judgment forever. Being convicted of a minor offense within the jurisdiction of the justice of the peace, he should, in right and reason, at the expiration of the period of the sentence, be freed from the consequences of the judgment. Otherwise, for a petty offense one may have hanging over his head, suspended like the sword of Damocles, all his life long a menace of immediate *Page 426 incarceration. No justice of the peace, by judicial construction, should be given power to pronounce a life sentence under any circumstances, or at all.
I therefore dissent.