though entitled to his freedom, does not regain citizenship rights unless they are restored by executive pardon.

Effect of pardon.-A pardon restores the person to competency as a witness, but does not restore credibility. The pardon removes the disability, but does not change the common-law principle, that conviction of an infamous offense is evidence of bad character for truth. "The general character of a person bad enough to destroy his competency as a witness, must be bad enough to affect his credibility, when his competency is restored by the executive." 16

By a statute enacted in 1899, persons convicted of infamous crimes may not practice law in the courts of the State. Pardoned persons are excluded from the application of this provision. This statute changes the rule generally laid down by the courts in the absence of statutes, that a pardon does not restore such a special privilege as that of practicing law.17

GOOD-TIME DEDUCTIONS

History.-The New Mexico good-time law dates from 1889.1 In all material respects, the act as then adopted remains the law, except that in 1899, there was added the provision that no deduction for good time should be made unless the Governor issued the person a pardon."

In 1909, additional good time of 5 days per month was authorized for convicts working as mechanics, foremen, assistant storekeepers, trusties, and others working outside the penitentiary walls. In 1912, this additional good-time allowance was increased to 10 days per month.*

By whom administered.-The section of the statute providing for good-time deductions does not fix administrative responsibility. However, the section on forfeiture provides

16 Territory v. Chavez, 8 N. M. 528, 45 Pac. 1107 (1896), quoting from Curtis v. Cochran, 50 N. H. 242, 244 (1870).

17 N. M. Stat. Ann. (Courtright, 1929) § 9-136.

1 N. M. Laws 1889, ch. 76, § 47 et seq.

2 N. M. Laws 1899, ch. 1.

3 N. M. Laws 1909, ch. 45, § 1. In 1905, additional good time had been authorized for convicts working on the new highway. El Camino Real. N. M. Laws 1905, ch. 7, § 3.

4 N. M. Laws 1912, ch. 53, amended N. M. Laws 1913, ch. 50.

N. M. Stat. Ann. (Courtright, 1929) § 130-158.

that forfeitures are determined by the board of penitentiary commissioners and the superintendent. Other sections indicate that the board of penitentiary commissioners is charged with the "general government and management" of the penitentiary and that the superintendent is to “administer the disciplinary regulations" thereof. As a matter of administrative practice good time is granted by the superintendent, and declared forfeited by the board of penitentiary commissioners upon the recommendation of the superintendent.

Persons eligible.-The good-time statute provides that "every convict imprisoned in the penitentiary

who

to him

shall perform faithfully the duties assigned shall be entitled to a deduction from the time of his sentence." Convicts who have escaped from the penitentiary, or who have been concerned in any revolt whereby any convict has escaped are excepted from the operation of the good-time law.10 This latter provision is not strictly adhered to since by administrative practice escapees and parole violators lose accumulated good time, but may again begin to earn good time after 3 months from the date of their reincarceration.

Amount of deduction.-Eligible prisoners receive goodtime deductions from their sentences as follows: For the first year, 1 month; for the second year, 2 months; for the third year, 3 months; for the fourth year, 4 months; for the fifth year, 5 months; for the sixth and each succeeding year, 6 months.11 Certain classes of prisoners may earn up to 10 days "additional good time" in any 1 month, over and above that previously stated.12

Forfeiture.-In case of wilful violations of prison rules and regulations prisoners who stand credited with good

Convicts working as mechanics, foremen, assistant storekeepers, trusties, and others working outside the penitentiary walls. Id. 130-172.

time shall forfeit as much of it as the board of penitentiary commissioners and the superintendent shall determine.13 A schedule of deductions has been incorporated in the printed rules issued by the board of penitentiary commissioners.14

Restoration.-No mention of the power to restore good time once it has been forfeited is to be found in the statutes, but presumably under the wide latitude granted it by law,15 if the superintendent so recommended, the board of penitentiary commissioners could restore such forfeited good time.

1

EXPIRATION OF SENTENCE

Formalities and effect of release.-Specific mention is made relative to the final discharge of prisoners from parole in the statutes but the only mention made of a procedure to be observed in discharging inmates from the penitentiary at the expiration of their sentences refers to those who have served their term without infraction of the rules and who are, therefore, eligible to a more or less automatic restoration of their citizenship.2 Such prisoners are furnished a certificate by the board of penitentiary commissioners which when presented to the Governor may result in a restoration of citizenship through the issuance of a pardon.

Discharge gratuities.-Upon discharge a prisoner is provided with five dollars in cash and with "suitable" clothing. Also he is provided with transportation to his home, if it is within the State. If his home is not in New Mexico, transportation will be provided to the place of his conviction "or to some place not more distant selected by the prisoner."

13 Id. 130-160. By rules promulgated by the board, this authority is delegated to the superintendent.

14 "For a violation of the rules the prisoner, for the first offense, loses 2 days, and for each subsequent offense 4 days of good time that may have accrued to him or her Rules of the Board of Penitentiary Com

missioners, November 1, 1935.

15 N. M. Stat. Ann. (Courtright, 1929) § 130-101. 'N. M. Stat. Ann. (Courtright, 1929) 130-168.

"If any convict shall pass the entire period of his sentence without any violation of the rules and regulations of the penitentiary, he shall be entitled to a certificate thereof by the superintendent, endorsed by the board of penitentiary commissioners, and on presenting the same to the Governor he may be granted a pardon and restored to citizenship, either at said time or subsequently, but the Governor shall not be obliged to grant such pardon." NM. Stat. Ann. (Courtright, 1929) § 130-174.

Id. 130-150, 130-169.

Prisoners' aid.-No aid is extended to discharged prisoners by the State of New Mexico.*

NEW YORK

SUSPENSION OF SENTENCE

Suspension of sentence at common law.-New York courts could suspend imposition of sentence at common law. This power was considered inherent in all courts of record having criminal jurisdiction, including courts of special sessions.2 The suspension could be of the whole sentence or of part. But it could not be a release to become absolute upon certain conditions. The court could not validly bind itself to refrain from sentencing the defendant at any future time.* And if a suspension were made on condition, the court would not lose jurisdiction to enforce the original judgment by revocation of the suspension even without proof of violation of the condition. The existence of the power at common law to suspend execution of sentence was at best doubtful,*

A privately endowed organization known as "The New Mexico Society for the Friendless" extends some assistance to released convicts.

1 People ex rel. Forsyth v. Court of Sessions, 141 N. Y. 288, 36 N. E. 386 (1894), 23 L. R. A. 856; rev'g. 66 Hun. 550, 21 N. Y. Supp. 659 (Sup. Ct. 1893); overruling People v. Morrisette, 20 How. Pr. 118 (1860). See also People v. Harrington, 1 How. Pr. (N. S.) 35 (Gen. Sess. 1884); People ca rel. Sullivan v. Flynn, 55 Misc. 639, 106 N. Y. Supp. 925 (Sup. Ct. 1907); People v. Goodrich, 183 N. Y. St. Rep. 406, 149 N. Y. Supp. 406 (Sup. Ct. 1914); People v. Page, 125 Misc. 538, 211 N. Y. Supp. 402 (Sup. Ct. 1925). 2 People ex rel. Dunnigan v. Webster, 14 Misc. 617, 36 N. Y. Supp. 745 (Spec. Sess. 1895), aff'd mem., 1 App. Div. 631, 37 N. Y. Supp. 1148 (1st Dep't 1896). See also People v. Brown, 153 App. Div. 234, 237, 28 N. Y. Cr. Rep. 302 (2d Dep't 1912).

People v. Page, 125 Misc. 538, 211 N. Y. Supp. 402 (Sup. Ct. 1925). People ex. rel. Forsyth v. Court of Sessions, 141 N. Y. 288, 36 N. E. 386 (1894).

5

People ex. rel. Pasco v. Trombly, 173 App. Div. 497, 160 N. Y. Supp. 67 (3d. Dep't 1916). See also, People v. Goodrich, 183 N. Y. St. Rep. 406, 149 N. Y. Supp. 406 (Sup. Ct. 1914).

6 People v. Goodrich, 183 N. Y. St. Rep. 406, 149 N. Y. Supp. 406 (Sup. Ct. 1914); People ex. rel. Schindler v. Kaiser, 95 Misc. 681, 159 N. Y. Supp. 322 (Sup. Ct. 1916). See also People ex rel. Paris v. Agent and Warden, State Prison, 118 Misc. 44, 47, 192 N. Y. Supp. 692 (Sup. Ct. 1922), rev'd. 201 App. Div. 573, 194 N. Y. Supp. 699 (3rd. dep't 1922); People v. Jennings, 135 Misc. 809, 240 N. Y. Supp. 91 (Cayuga Cy. Ct. 1930). The court said in the Goodrich case: "If the court possesses inherent power to postpone the passing of sentence, why should it not possess a like power to postpone execution of a sentence after it has been pronounced" (149 N. Y. Supp. 409) and "There was no distinction made by the English Courts" (149 N. Y. Supp. 410).

and the weight of authority appears to be against it.' But the power to suspend execution is conceded in cases of criminal contempt.

8

Statutes.- Whatever doubts existed as to the common law powers to suspend sentence have been settled by statutes which today allow suspension of either the imposition or execution of sentence. Restrictions on persons eligible to suspension of sentence and terms under which suspension must be made are similar to those pursuant to the granting of probation. It is well settled that statutory authority for suspension of sentence does not conflict with the executive power to grant reprieves and pardons.10

However, it should be pointed out that the statutory authority for the suspension of sentence does not apply to offenses not defined by the Penal Law." Therefore whether the power to suspend either the imposition or execution of

7 People v. Boehm, 176 App. Div. 401, 163 N. Y. Supp. 22 (4th Dep't 1917), aff'd mem. 226 N. Y. 705, 123 N. E. 881 (1919); People ex rel. Hirschberg v. Seeger, 179 App. Div. 792, 166 N. Y. Supp. 915 (2d. Dep't 1917) appeal dismissed, 223 N. Y. 659, 119 N. E. 1069 (1918), aff'g. 100 Misc. 51, 165 N. Y. Supp. 32 (Sup. Ct. 1917). In the Boehm case the appellate division affirmed an order revoking a suspension of execution of sentence on the alternative ground that the power to suspend did not exist, and on the ground that there was no limitation in time within which revocation could be made. The court of appeals therefore, by affirming the order of revocation on appeal did not necessarily pass on the existence of the power to suspend. In the Seeger case the appellate division affirmed an order revoking suspension of execution of sentence on an alternative ground that the power of suspension did not exist. The appeal was dismissed on jurisdictional grounds.

8 Typothetae of New York City v. Typographical Union No. 6, 138 App. Div. 293, 122 N. Y. Supp. 975 (1st Dep't 1910), aff'g. 66 Misc. 484, 123 N. Y. Supp. 967 (Sup. Ct. 1910) (Execution may be suspended even after the affirmance of the order of contempt by the appellate division and the court of appeals).

N. Y. Penal Law, § 2188, as amended N. Y. Laws 1933, ch. 193 and ch. 517; N. Y. Code Cr. Proc. § 470a. Chapters 193 and 517 should be read and interpreted together. Opinions Att'y Gen. (1933) 508.

10 People ex rel. Forsyth v. Court of Sessions, 141 N. Y. 288, 36 N. E. 386 (1894); People ex rel. Sullivan v. Flynn, 55 Misc. 639, 106 N. Y. Supp. 925 (Sup. Ct. 1907); People v. Goodrich, 183 N. Y. St. Rep. 406, 149 N. Y. Supp. 406 (Sup. Ct. 1914).

11 N. Y. Penal Law § 40 subd. 4. People ex rel. Hirshberg v. Seeger, 179 App. Div. 792, 166 N. Y. Supp. 915 (2d Dep't 1917), aff'g 100 Misc. 51, 165 N. Y. Supp. 32 (Sup. Ct. 1917). Since New York has no common law crimes (N. Y. Penal Law § 22) the common law powers of suspension would apply to crimes defined by statutes other than the Penal Law.

Neither the statutory nor inherent power to suspend sentence may be applied in statutory crimes for the commission of which punishment is made mandatory by the statute. People ex. rel. Hirschberg v. Seeger, 179 App. Div. 792, 166 N. Y. Supp. 915 (2d Dep't 1917).

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