dissenting. I cannot concur in tbe conclusion reached by my associates in tbis case. Tbe result seems to come by reason of a belief tbat no different conclusion can be reached, and avoid a decision tbat tbe statute in question is invalid. To save so bolding, it seems to me tbe court has put an exceedingly strained construction on the meaning and tbe reasons for tbe law. I shall not at length review tbe authorities cited, but on tbis question simply refer to tbe case of Snodgrass v. State, — Tex. Crim. Rep. —, 41 L.R.A.(N.S.) 1144, 150 S. W. 162, on which so much reliance seems to be placed. I am unable to discover tbat it has any application to either tbe law or tbe facts before us.
In effect tbe Texas law wiped out tbe effect of tbe conviction, as well as tbe fact of conviction, and restored tbe party to practically tbe same *48position in society that be bad occupied before tbe conviction, or would bave occupied bad be never been convicted. Tbis is wby tbe Texas statute was construed as working a pardon, if valid. Our statute does not contain any sucb provisions, but, on tbe contrary, when strictly construed, if tbe defendant’s conduct is exemplary, it leaves a sentence banging over bim during tbe remainder of bis life. Tbe better bis conduct tbe more certain it is that bis future must be blighted by a judgment of conviction in a criminal case still suspended over bim. It thus becomes a punishment for good conduct rather than for infractions of law, and tbis only in case of tbe commission of a minor offense. Tbe court may at any time, either with or without cause, revoke its order of suspension and inflict tbe punishment prescribed.
Tbe defendant may not bave sought a suspension of tbe execution of tbe judgment. lie may not bave desired it. Tbe court may, nevertheless, inflict upon bim a punishment far in excess of anything usual or theretofore known in tbe annals of jurisprudence for tbe offense committed. To say tbe least, for a misdemeanor it becomes an unusual punishment. In tbe case at bar tbe record discloses that tbe application for a suspension of execution was made by tbe state, and not by tbe defendant. But tbe Texas case is not authority on tbe further point to which it is cited.
Tbe Texas court in its opinion suggested that a law might be drawn to cover first offenses, providing for a recommendation by tbe judge to tbe governor; that is, a recommendation for a conditional pardon, supported by a copy of tbe testimony taken on tbe trial, and a provision that in sucb case tbe prisoner should not be conveyed to tbe penitentiary until action bad been bad on tbe recommendation of tbe judge. Tbis suggestion of tbe Texas court that a law might be enacted, which by its terms specified that it was for tbe purpose of enabling tbe judge to recommend clemency, and staying execution long enough to enable tbe governor to act, is made a basis of tbe bolding that our statute, which contains none of these provisions, was enacted for tbe purpose only of giving an opportunity to seek executive clemency.
Its very terms refute any sucb assumption. It specifies the reasons for tbe stay or suspension of execution of tbe judgment. They are: If it appears that it is tbe first offense, that tbe character of tbe defendant and tbe circumstances are sucb that tbe offense is not likely to be re*49peated, and, finally, that the public welfare does not require the imposition of the penalty. It does not authorize the suspension of the execution of the sentence for any reason except those enumerated. Furthermore, if any such intention existed, why should the suspension be permitted for a longer period than necessary to enable the party to apply for clemency, the court to make the recommendation, and the pardon board to act ? In no case would a suspension of more than six months be necessary to permit these things to be done. In the case at bar the conviction was had in October; the next meeting of the board of pardons was fixed by law for the 2d day of December following. No application was made for clemency, and none has been made at any of the subsequent meetings of the board. Still further, the record discloses that the execution of the sentence was in fact suspended for an entirely different reason. It was suspended because the defendant was willing to take her departure from the state. It remained suspended for more than a year and until she returned to the state.
For these reasons I cannot concur in the reasoning of the conclusions of my learned brethren on this subject. Neither can I concur in their intimation that, except for imagining that the law were enacted solely with a view to permitting the defendant to apply for executive clemency, it would be unconstitutional. There is a wide difference between the suspension of the execution of sentence, as provided in this statute, and the granting of a pardon or conditional pardon. A pardon is a remission of guilt, and a conditional pardon is one which does not become operative until the grantee has performed some specific act, or which becomes void when some specified event transpires. 1 Bishop, Grim. L. § 914. A remission of "guilt reinstates the offender as nearly as possible in the same condition as he would have occupied had he never been charged with committing the offense. A pardon releases the punishment and blots out of existence the guilt, so that in the eye of the law the offender is as innocent as though he had never committed the offense. It makes him, as it were, a new man, and gives him a new credit and capacity; People ex rel. Forsyth v. Court of Sessions, 141 N. Y. 288, 23 L.R.A. 856, 36 N. E. 386, 15 Am. Crim. Rep. 675. This is not true of the suspension of execution of a judgment. In such case the court in effect says: “This is your first conviction. Your record heretofore has been good. The offense is only a misdemeanor. The circumstances *50surrounding it and your relations to society have been such as to indicate that you are not naturally criminal, and that you are not likely to become a confirmed criminal. From these facts it appears that the welfare of society does not demand that at this time the sentence be executed. The policy of the law is to give every person the greatest opportunity for development that due protection to society will permit him to have. Hence you are put on probation. The court will see whether you are disposed to become a criminal, and whether in fact you are entitled to its consideration and society still be protected. We will, therefore, not execute the sentence until we have an opportunity to note your conduct and learn more of your disposition. Should you be guilty of further infraction of law, and not deport yourself as a good citizen at all times within the period for which the sentence was pronounced, the suspension will be revoked, and you will be required to pay the penalty of the offense which you committed and of which you were convicted.” This does not constitute a pardon, either full or conditional. It does not absolve him from guilt. It is not a remission. It does not restore- to him his rights as a citizen, or wipe out the record of his conviction; the defendant enjoys his liberty outside the walls of the jail, yet he remains under the sentence to which he has been condemned, and may be imprisoned at any time. George v. Lillard, 106 Ky. 820, 51 S. W. 193, 1011.
In my judgment, so long as the statute is construed to not extend the power of suspension beyond the maximum limit of the time for which the defendant was sentenced, by express terms, and does not permit a revocation thereof except within such period, it is valid, and not subject to attack as an invasion of the pardoning power. All that is necessary is to read and construe the statute as applying only to the time during which the sentence would have been running, had there been no suspension. It is then made to harmonize with the modern policy of dealing with criminals for the first time guilty of minor offenses. It gives them an opportunity to prove their worth and that society will not suffer if the full penalty is not executed, and it minimizes the punishment, rather than increases it, as is done by the construction given the statute by my brethren.
Courts do not try criminals and pi-onounee sentence with reference to what the board of pardons may do in the future. They are guided by *51tbe law. Tbe board of pardons is governed by no law. It exercises its functions whenever in its judgment tbe ends of justice bave been met in a given case. When an offender bas served long enough to punish him adequately for the offense committed, and to serve as a warning to others, and thereby protect society, and when at tbe same time be gives adequate evidence of reformation, tbe board of pardons may feel justified in acting favorably. But none of these considerations apply to a court. Its action within certain limits is controlled by tbe law. I am aware that numerous authorities bold that some statutes somewhat similar to tbe one in question provide for an invasion of tbe pardoning power, but I think that in each instance tbe statute was a palpable invasion of that power, or tbe court failed to distinguish between a pardon and tbe suspension of execution of judgment, and did not recognize that there is a marked difference.
Tbe pardoning power in this country is not parallel to that in monarchical countries, where tbe king rules by divine right, and a history of this power in such countries properly sheds but little light upon tbe subject. For a clear, comprehensive consideration of tbe subject of tbe pardoning power in America, see State v. Nichols, 26 Ark. 74, 7 Am. Rep. 600. Because tbe order suspending tbe execution of tbe judgment in this case was not entered until long after tbe expiration of tbe six months for which tbe defendant was sentenced, I am of tbe opinion that tbe writ should be granted. Re Markuson, 5 N. D. 180, 64 N. W. 939, is a direct authority on this subject.
Furthermore, it is not necessary to strain tbe construction to protect tbe offender. Everything that is attempted to be accomplished by this statute can be done by suspending sentence, which tbe court has tbe inherent power to do, as held by nearly all authorities. See People ex rel. Forsyth v. Court of Sessions, supra.