Dissenting. — I dissent from that part of the opinion by our learned Chief Justice wherein he holds that the judgment imposing a jail sentence upon the defendant Matthews is void for uncertainty.
The sentence provides that Raleigh Matthews shall “pay a fine of $250, including costs; or, in default thereof, that he be confined in the county jail for the period of 125 days; and I further sentence him to be confined in the county jail for the period of 30 days * *
Thus far, the judgment is plain, unambiguous and certain. In short, it requires the defendant to pay *92a fine of $250 and to be imprisoned in tbe county jail for a period of 30 days. Now follows, in the same sentence of the court’s judgment, an order suspending the execution of the jail penalty, pending the defendant’s g’ood behavior. It reads:
«í # # p-yp it is hereby ordered said jail sentence be and stand suspended during defendant’s good behavior. ’ ’
This language constitutes no part of the sentence: State v. Hatley, 110 N. C. 522 (14 S. E. 751). The order is void. But a void order of suspension of a valid judgment should not render void the judgment itself.
It is basic law that the sentence in every criminal cause should be definite and certain and should not rest upon any condition whatsoever.
This defendant was convicted for the violation of a penal statute. It is mandatory that punishment shall be inflicted. The court is required- to pronounce the penalty, but is not empowered to pardon or reprieve, conditionally or otherwise. The defendant was sentenced by a competent court, on account of the commission of a specific crime triable within the jurisdiction of the court, to pay a certain sum of money and to serve a given number of days in the county jail. What is indefinite about that?
The only error in the proceedings lies in the order of suspension. While there is much conflict among the decisions, the burden of authority is to the effect that no court, without a special statutory provision, has the power to suspend sentence, or execution thereof, indefinitely: Ex parte United States, 242 U. S. 27 (61 L. Ed. 129, Ann. Cas. 1917B, 355, L. R. A. 1917E, 1178, 37 Sup. Ct. Rep. 72). See notes in *9333 L. R. A. (N. S.) 112; 39 L. R. A. (N. S.) 242; L. R. A. 1915C, p. 1169.
Under the facts in this case, the case of Fuller v. State, 100 Miss. 811 (57 South. 806, Ann. Cas. 1914A, 98, 39 L. R. A. (N. S.) 242), is much in point. In that case it was held that a convict who had assented to a void provision in his sentence suspending it pending good behavior cannot take advantage of its invalidity when the sentence is sought to be enforced against him, nor of the fact that the original term of sentence had elapsed. There are, however, decisions to the contrary.
In this case the sentence has not been satisfied by the expiration of time, because a sentence of imprisonment in the county jail, under the provisions of our Code, “commences from the day of his delivery at such prison to the proper officer thereof, and no time during which such person is voluntarily absent * # can be estimated or counted as a part of the term for which such person was sentenced.” Or. L., §§ 2378, 2383; 3 Wharton Crim. Proc. (3 ed.), § 1867. Also see list of authorities to like effect in Fuller v. State, supra.