within 3 days of discharge, except in case of inability caused by illness. At any time within 3 months before his discharge, the prisoner is permitted to allow his hair and beard to grow. Prisoners discharged before the expiration of the maximum period of sentence are aided in securing proper employment by the parole clerk.*

ARKANSAS

SUSPENSION OF SENTENCE

Suspension of sentence at common law.-It has been repeatedly decided that Arkansas courts have no inherent power to suspend execution of sentence indefinitely. "At common law a court has power to suspend sentence temporarily or for a reasonable time in order to afford time to consider motions for new trials on the ground of newly discovered evidence and the like, and to enable the court to inform itself as to the severity of the sentence to be pronounced," but "it is evident that when a court undertakes on its own motion to suspend a sentence indefinitely, it really refuses to enforce the punishment provided by statute, unless it shall at some future time conclude that it is proper to do so. The power to exercise discretion as to the enforcement of the punishment provided by law and pronounced by the court is vested in the Governor." 2

Whether or not there is inherent power, in the absence of statute, indefinitely to suspend imposition of sentence has never been decided. It has been held that a court may postpone the pronouncing of sentence to a subsequent term, in order to afford time for deliberation, appeal, and the like.3

Ariz. Rev. Code Ann. (Struckmeyer, 1928) § 5329.

4 Id. § 5327.

1 Scruggs v. City of North Little Rock, 179 Ark. 200, 14 S. W. (2d) 1112 (1929); Davis v. State, 169 Ark. 932, 277 S. W. 5 (1925); Holden v. State, 156 Ark. 521, 247 S. W. 768 (1923).

2 Davis v. State, 169 Ark. 932, 935, 936, 277 S. W. 5 (1925).

Thurman v. State, 54 Ark. 120, 15 S. W. 84 (1891); Greene v. State, 88 Ark. 290, 114 S. W. 477 (1908); State v. Wright, 96 Ark. 203, 131 S. W. 688 (1910); Cox v. State, 114 Ark. 234, 169 S. W. 789 (1914); Collatt v. State, 165 Ark. 136, 262 S. W. 990 (1924). See Ark. Dig. Stat. (Crawford & Moses, 1921) § 3218.

In some cases the court seems to have extended this rule to permit indefinite suspension. More recently the court has again indicated that only temporary suspension for reasons connected with the proper discharge of the function of sentencing is permissible."

Where the court erroneously does undertake to suspend execution of sentence, it has power to correct that error and order sentence to be executed, even after the period fixed in the sentence has expired." Thus in one case, defendant was sentenced to 1 year in the penitentiary and then execution was suspended. Sixteen years later, he was cited to appear, and was ordered to serve the sentence on the ground that he had violated the condition of the suspension. This was upheld. While at large under the void order of suspension, said the court, the defendant was "in the same situation that he would have been had he escaped from custody. A sentence of imprisonment is satisfied, not by lapse of time after it is pronounced, but by the actual suffering of the imprisonment imposed by it. The reason is that the time at which a sentence shall be carried into execution is not provided by statute and forms no part of the judgment of the court."8 Moreover, it has been held that when a court imposes sentence and then erroneously suspends execution, the time

In a number of reported cases, it appears that the trial court had indefinitely suspended imposition of sentence. In the earliest of these, the Supreme Court felt it unnecessary to decide whether the court had such power or not. Owen v. State, 86 Ark. 317, 111 S. W. 466 (1908) (person released on suspended sentence after plea of guilty held not "convicted" so as to be disqualified as a witness). In the others the Supreme Court mentioned the practice without criticism. Joiner v. State, 94 Ark. 198, 126 S. W. 723 (1910); Barwick v. State, 107 Ark. 115, 153 S. W. 1106 (1913); Huddleston v. Craighead County, 128 Ark. 287, 194 S. W. 17 (1917).

Davis v. State, 169 Ark. 932, 277 S. W. 5 (1925); Massey v. Cunningham, 169 Ark. 410, 275 S. W. 737 (1925).

Freeman v. City of Benton, 191 Ark. 1131, 89 S. W. (2d) 738 (1936); Davis v. State, 184 Ark. 1062, 45 S. W. (2d) 35 (1932); Scruggs v. North Little Rock, 179 Ark. 200, 14 S. W. (2d) 1112 (1929); Ketchum v. Van Sickle, 171 Ark. 784, 286 S. W. 948 (1926); Stocks v. State, 171 Ark. 835, 286 S. W. 975 (1926); Davis v. State, 169 Ark. 932, 277 S. W. 5 (1925); Massey v. Cunningham, 169 Ark. 410, 275 S. W. 737 (1925); Ex parte Holdaway, 105 Ark. 1, 150 S. W. 123 (1912) (payment of fine postponed).

"Stocks v. State, 171 Ark. 835, 286 S. W. 975 (1926).

Id. at 837-838, 286 S. W. at 976. So where a sheriff without authority undertakes to release a convict on certain conditions, he can be rearrested any time to serve his sentence. Massey V. Cunningham, 169 Ark. 410, 275 S. W. 737 (1925).

for taking an appeal begins to run from the time sentence was pronounced."

Statutes. The first statutory power was granted in 1911 in cases of nonsupport and included the right to "suspend any sentence, stay or postpone the enforcement of execution or release from custody." 10

In 1923, circuit courts were given power to suspend imposition of sentence,11 and in 1929 this power was extended to municipal courts in misdemeanor cases.12 Although this statute specifically authorized the courts to suspend imposition of sentence upon any terms the judge might deem proper, including probation of the defendant, there was no provision for probation officers or other means of supervision until 1937, when the office of director of probation and parole was created, with the duty, among others, of supervising all State parolees and probationers.13 With this addition, the Arkansas provisions deserve to be classed as a probation law rather than as a mere suspension of sentence law, and it will therefore be discussed under the heading of probation.

It should be noted that this statute relates only to suspending imposition of sentence. There is no right in any court indefinitely to suspend execution of sentence, either at common law or by statute.14 Nor does the statute give the court power to set aside or remit a sentence after its execution has begun.15 Also, the statute refers only to circuit and municipal courts; therefore, there is no power in a mayor's court to suspend either imposition or execution of sentence.16

Davis v. State, 184 Ark. 1062, 45 S. W. (2d) 35 (1932). In this case the municipal court imposed sentence and suspended execution. Three months later, the court set aside the order of suspension. Defendant thereupon prayed an appeal. Held, the 30-day period for appeal had elapsed.

10 Ark. Acts 1911, p. 166, § 23; Ark. Dig. Stat. (Crawford and Moses, 1921) § 5784.

11 Ark. Acts 1923, p. 40; Ark. Dig. Stat. (Crawford and Moses, Supp. 1927)

§ 3229a. This act has been held constitutional. Emerson v. Boyles, 170 Ark. 621, 280 S. W. 1005 (1926).

12 Ark. Acts 1929, p. 20.

18 Ark. Acts 1937, No. 178; Ark. Dig. Stat. (Pope, 1937) §§ 12772 (a), 12772 (b).

14 Davis v. State, 184 Ark. 1062, 45 S. W. (2d) 35 (1932); Ketchum v. Van Sickle, 171 Ark. 784, 286 S. W. 948 (1926).

15 Emerson v. Boyles, 170 Ark. 621, 280 S. W. 1005 (1926).

18 Freeman v. City of Benton, 191 Ark. 1131, 89 S. W. (2d) 738 (1936).

The extent of the practice of suspending the imposition of sentence in Arkansas is indicated by the fact that in the years 1932-34, 919 sentences out of 4,245, or approximately 21.6 percent, were suspended.17 However, there is little uniformity in the use of the power in the various circuits, the number of suspensions ranging from about 39 percent in the fifth and fourteenth circuits to none in the thirteenth and fifteenth circuits.18 No figures are yet available as to the extent of probation under the act of 1937.

Deferred sentence.-Another device is used in Arkansas, generally called "deferred sentence." It is a postponement of action in pronouncing sentence and suspending it from one term of court to the next.19 The defendant is released from custody and his conduct is observed to determine the appropriateness of suspending sentence at the next term of court. This appears to be an informal substitute for the preprobation investigation practiced in States where courts are equipped with probation officers. It appears that this practice is largely confined to cases in which the defendant pleads guilty, although this is not always true.20

2

PROBATION

Historical development.-The first statute providing for suspension of sentence in nonsupport cases does not mention probation. The first general suspension of sentence statute used the word "probation," but no provision was made for probation officers or other means of supervision, although in practice the judge in some cases tried to maintain at least a minimum of supervision, or used the sheriff

"Biennial Report of the Attorney General of Arkansas. 1932-34.

18 Ibid.

19 On a plea of guilty at one term of court, judgment may be entered at a subsequent term. Thurman v. State, 54 Ark. 120, 15 S. W. 84 (1891); Greene v. State, 88 Ark. 290, 114 S. W. 477 (1908); Joiner v. State, 94 Ark. 198, 126 S. W. 723 (1910); State v. Wright, 96 Ark. 203, 131 S. W. 688 (1910); Phillips v. State, 100 Ark. 515, 140 S. W. 734 (1911); Barwick v. State, 107 Ark. 115, 153 S. W. 1106 (1913); Cox v. State, 114 Ark. 234, 169 S. W. 789 (1914); Collatt v. State, 165 Ark. 136, 262 S. W. 990 (1924); see Ark. Dig. Stat. (Crawford and Moses, 1921) § 3218.

*Collatt v. State, 165 Ark. 136, 262 S. W. 990 (1924).

1 Ark. Acts 1811, p. 166, § 23; Ark. Dig. Stat. (Crawford and Moses, 1921) § 5784.

2 Ark. Acts 1923, p. 40; Ark. Dig. Stat. (Crawford and Moses, Supp. 1927) § 3229a. See ante, Suspension of Sentence.

or prosecuting attorney for this purpose. At least in the larger counties, however, such arrangements were utterly inadequate. It was not until 1937, when the office of director of probation and parole was created, that Arkansas can be said to have adult probation.*

Present organization.-The act of 1937 creates a Statecontrolled system of probation, headed by a State director of probation and parole.

The director is appointed by the State board of pardons and paroles (also created in the same act), upon civil service examination. He is responsible for the proper supervision of all State parolees and probationers."

Preprobation investigation.-No provision is made for investigation of defendants to determine their eligibility for probation. Even in the act of 1937, the duties of the director of probation and parole specifically mentioned refer only to supervision of persons placed on probation, and not to investigation of defendants before the court to aid the court in determining whether they are fit persons to be placed on probation.

Persons eligible.-No restrictions are provided on the eligibility of defendants for suspension of sentence and probation."

Discretion to suspend sentence and place on probation rests entirely with the judge. He is not bound by a recommendation by the jury in that regard.10

Terms and conditions.-Suspension of sentence may be on such conditions as the court shall deem proper as to probation, restitution of property involved, and payment of costs of the case.11 The period of suspension and probation may be indefinite.

Termination and revocation.-Suspension may be revoked and sentence pronounced at any time the court is in

Ark. Acts 1937, No. 178, § 5a; Ark. Dig. Stat. (Pope, 1937) § 12772 (a). Juvenile probation was provided for in 1911. Ark. Acts 1911, p. 166; Ark. Dig. Stat. (Crawford and Moses, 1921) §§ 5765, 5766.

Id. (Pope, 1937) §§ 12768, 12772 (a), 12772 (b).

• Id. § 12772 (a).

7 Id. § 12772 (b).

8 Ibid.

Ark. Dig. Stat. (Pope, 1937) § 4053.

10 Criglow v. State, 183 Ark. 407, 36 S. W. (2d) 400 (1931); Clarkson v. State, 168 Ark. 1122, 273 S. W. 353 (1925).

11 Ark. Dig. Stat. (Pope, 1937) § 4053.