Under section 19-2501, I. C. A., a trial court may, in its discretion, "whenever any person shall have been convicted of any crime against the laws of this state except those of treason or murder, and the defendant has never before been convicted of a felony," commute the sentence by confining the defendant in the county jail, or, if of proper age, in the state industrial school, or suspend the execution of judgment, or withhold judgment on such terms and for such time as it may prescribe, or put the defendant on parole in charge of a probation or other proper officer.
Before the enactment of our probation statute (sections19-2501 to 19-2507, inclusive) all persons convicted of a felony were, because the trial court had no alternative, sentenced and confined in the state penitentiary, where first offenders were placed in close association with hardened criminals, making restoration to the ranks of law-abiding citizens very difficult, if not impossible. Even a cursory examination of our parole statute discloses that it was enacted for the express purpose of vesting trial courts with jurisdiction, in proper cases, to commute sentences by, for instance, confining a defendant, if of proper age, in the state industrial school, or by placing a defendant on parole in charge of a probation or other proper officer, instead of sending the defendant to the state penitentiary which, common knowledge tells us, is a veritable training school for crime.
The statute in question applies only to cases of first offenders. Whether a person convicted of a felony actually is a first offender and otherwise brings himself within the statute *Page 505 involves a question of fact and that, in turn, sets in motion the discretion of the trial court (Sessions v. Walker, 34 Idaho 362, 365, 201 P. 709). The discretion so set in motion and vested in the trial court by said statute, is not a mental discretion to be exercised ex gratia, that is to say, as a matter of grace, or favor, or indulgence, but an impartial discretion, guided and controlled in its exercise by fixed legal principles.
An examination of the record in the case at bar leaves no doubt but that the defendants brought themselves well within the provisions of the statute. Under these facts and circumstances, the trial court could not act arbitrarily nor upon mere whim and caprice, because that would amount to a nullification of the statute.
The case at bar is here on an appeal from the judgment of conviction; therefore, it is my opinion that this court may pass upon the question as to whether the trial court did, or did not, abuse the sound legal discretion vested in it by statute as in other cases, for example, motion for a continuance.
For these reasons I concur in the opinion of Mr. Justice Budge.