#### Scruggs v. North Little Rock.

Opinion delivered March 18, 1929.

W. W. Shepherd, for appellant.

Tom F. Digby, for appellee.

Smith, J.

In, December, 1927, appellant was tried in the municipal court of North Little Rock upon the charg’e of reckless driving'. The court docket reflects that the following judgment was rendered: “Docket No. 6, case No. 4083, page 817. T. N. Scruggs; charge, reckless driving; fined $25 and sixty days. Suspended on promise to stop running a jitney in or past the city of North Little Rock, or picking up passengers therein.”

In September, 1928, appellant was brought- into the same court upon the charges of assault and battery and disturbing the peace, and, after a trial upon these charges (which resulted in the imposition of a fine in each case), the court ordered the chief of police to take appellant into custody under the judgment in the reckless driving case. This order was made without any proceedings being had in that case except that of the order to take appellant into custody. Upon this order being obeyed, appellant sued out a writ of habeas corpus, in which he *201prayed Ms release from custody upon the ground tliat no final or enforceable judgment liad been rendered against Mm. Tbe circuit court field against tfiis contention, and ordered tfiat appellant be remanded to tfie custody of tfie chief of police of North Little Rock, and tfiis appeal is from tfiat order.

Tfie judgment of tfie circuit court from wfiicfi tfiis appeal comes accords with, tfie views of tfiis court in tfie cases of Holden v. State, 156 Ark. 521, 527, 247 S. W. 768; Middleton v. State, 160 Ark. 108, 254 S. W. 342; and Davis v. State, 169 Ark. 932, 937, 277 S. W. 5.

Tfie municipal court rendered a final and enforceable judgment when the sentence of a fine of $25, with imprisonment for 60 days, was imposed. Tong v. State, 169 Ark. 708, 716, 276 S. W. 1004; ex parte Holdaway, 105 Ark. 1, 150 S. W. 123. Tfie jurisdiction of tfie court to render tfiis judgment' is not questioned, but it is earnestly insisted tfiat tfie judgment immediately ceased to be effective and enforceable as a judgment when it was further ordered tfiat it be “suspended on promise to stop runmng a jitney in or past tfie city of North Little Rock, Ark., or picking up passengers therein.’’ It is not now contended on behalf of tfie city, in support of tfie judgment here appealed from,, tfiat tfie judge of tfie municipal court had the power to impose the condition upon tfie enforcement of tfie judgment wfiicfi was imposed, and it may be said with emphasis tfiat fie had no such power. Tfiis condition was clearly an excess of power; but there was no excess of power in imposing tfie sentence itself.

Tfie Davis case, supra, is one in wfiicfi tfie circuit court, upon a plea of guilty to tfie charge of selling intoxicating liquors, had imposed upon tfie defendant a sentence of one year in tfie penitentiary, but, in tfie same judgment, had ordered tfie sentence be stayed, “provided the defendant did not * * violate any of tfie liquor laws of tfie State of Arkansas; but should fie at any time violate any of tfie liquor laws of tfiis State, then tfiis judgment and sentence is to be in full force and effect *202from and after any violation by Mm.” At a later term of the circuit court an order was entered of record wherein it was adjudged that the suspension of the execution of the judgment against the defendant Davis was without authority, and the court then entered a judgment suspending the execution of the sentence indefinitely. At a still later term of the court a motion was filed to revoke the order suspending the execution of the sentence, on the ground that the defendant had again violated the liquor laws. The court found that the defendant had violated the previous orders of the court in the premises, and that the suspension of the execution of the sentence should be revoked. It was therefore ordered that the defendant be taken into custody until he had discharged the original sentence, and from that order an appeal was prosecuted.

We there said that the appeal raised the question whether the court had the power to suspend the execution of á sentence for an indefinite time, and we held that the court had no such power.

The .judgment there involved was one which had been rendered by a circuit court, and it was said that neither the Constitution of the State nor any statute thereof conferred this power at the time the sentence was imposed, although, as was pointed out, this power was later conferred on circuit courts. Inquiry was then made whether this power existed at the common law, and, after a review of the authorities, it was there said that, “according to the annotation' in these reports, the weight of authority is that, in the absence of a statute conferring it, courts have no power to suspend the execution of their sentences indefinitely.” It was there also said that “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 *203law and pronounced by tbe court is vested in tbe Governor.”

Tbe court then announced tbe conclusion that tbe circuit judge in each instance above mentioned exceeded bis power, and that tbe stay of tbe execution of tbe sentence was void, and it was held that tbe circuit court bad tbe right to order tbe defendant to be taken into custody, to tbe end that be might serve bis sentence.

Tbe opinion in tbe Davis case cites numerous cases on tbe subject, which we do not again review, as tbe opinion in that case is decisive of tbe present appeal.

Tbe opinion in tbe case of Massey v. Cunningham, 169 Ark. 413, 275 S. W. 737, points out tbe difference which some courts have made between tbe power to suspend tbe imposing of a sentence and tbe power to suspend tbe execution of a sentence, but we do not consider this distinction here, for tbe reason that tbe sentence was imposed, and tbe attempt of tbe court was to suspend its execution, and tbe exact .point decided in tbe Davis case, supra, was that this could not be done. See Ketchum v. Vansickle, 171 Ark. 784, 286 S. W. 948.

Tbe judgment of tbe circuit court is therefore correct, and must be affirmed, and it is so ordered.