The judge of the Court of First  of Instance of Cavite fixed a definite date, the 12th of the  present month of January, 1915, for the execution of a capital sentence, and then upon petition of one of the parties the same  judge of first instance of the said district postponed  or deferred for several  days  the date so fixed, by setting another definite date, the 27th of this same month.  The  Attorney-General applied  to this Supreme Court for a writ of certiorari, alleging that the lower court had exceeded  its jurisdiction, because after it had once performed  its ministerial duty of fixing the date for execution of the sentence its jurisdiction  had terminated and nothing done by it thereafter could have any validity.  The respondent judge filed  a demurrer to the Attorney-General's petition.

At the hearing on the demurrer the parties agreed that the facts had already been reviewed by this  Supreme Court, as well  as the question of  law involved  in the demurrer, and really the only fact is that the defendants were seeking a pardon or commutation of the capital penalty; and  as the  12th  day of January,  1915,  the  date on  which  the penalty was to be inflicted, was approaching, they requested the lower court to set another date or to grant the extension which the  court ordered in deciding the motion.   In view of this agreement of the parties it is  unnecessary to call for  the transcript of the record to be reviewed by this Supreme Court in accordance with the  provisions of section 217 of Act No. 190, or to try the case  and hear the parties in order to pass upon the application  for the writ of certiorari,  that  is, whether the lower court exceeded its authority  in the exercise of  its powers, as  is provided  in section  220.   In fact,  even though the  record  had been called for and the application transmitted  to the  respondent judge, the present status of the case would have been attained whether he had filed the present demurrer or had answered.  Hence we consider that there  has been fully submitted to us the case of whether or not  the lower court exceeded  its  authority in fixing another subsequent  date for carrying out the capital sentence  in  question, already set by it for the 12th of the present month.

The question, therefore, is this: Did  the court have jurisdiction, after fixing a date for the execution of its sentence, to set another subsequent date by deferring it or by fixing an interval of time for its fulfillment?

It is contended that after  the court has once issued its order of execution it has performed its final act of jurisdiction and then has nothing more to do with the case; that the convict has then passed to the hands of the executive, the only authority thenceforward competent to perform the acts necessary  for putting the penalty into effect; in other words, that judicial authority over the convict has terminated and that he has passed completely into the control of the executive.  Hence it is inferred that if there were any cause or reason for putting off the execution, the application for that purpose could not be addressed  to  the  court that ordered the execution but to the executive authority charged with carrying it out.  In this way, it is further  contended, the independence of each authority is  maintained, and interference with one by another is  prevented.  Also, the immutability of the res judicata is assured by not permitting the court that has already said its final word in the case to add any further word  whereby it may substantially alter or change its decision therein, which is what would happen by changing or altering the execution date already fixed.

This Supreme Court has repeatedly declared in various decisions, which constitute jurisprudence on the subject, that in criminal cases, after the sentence has been pronounced and the period  for reopening the same has elapsed, the court can not change or alter its judgment, as its jurisdiction has terminated, functus est officio suo, according to the classical phrase.  When in cases of appeal or review the cause has been  returned  thereto for execution, in the event that the judgment has been affirmed, it performs a ministerial duty in issuing the proper order.  But it does not follow from this cessation of functions on the part of the court with reference to  the ending  of the cause that  the  judicial authority terminates by having then passed completely to the executive. The particulars of the execution itself, which  are certainly not always included in the judgment  and writ  of execution, in any event are absolutely under the control of the judicial authority, while the executive has no power over the person of the convict except to provide for carrying out the penalty and to pardon.

Getting down to the solution of the question in the case at bar, which is that  of execution of  a capital sentence, it must be accepted as a hypothesis that postponement of the date can be requested.  There can be no  dispute on this point.  It is a  well-known principle that, notwithstanding the order of execution and the executory nature thereof on the date set or  at the  proper time, the date therefor can be postponed, even in sentences of death. Under the common! law this  postponement can be ordered in three ways:  (1) By command of the King; (2) by discretion (arbitrio) of the court; and  (3) by mandate of the law.  It is sufficient to state this principle of the common  law to render impossible the assertion in  absolute terms that after the  convict has once been  placed  in jail the trial  court can not reopen the case to investigate the  facts that show the need for postponement.  If one of  the ways is by direction  of the court, it is acknowledged that even after the date of the  execution has been fixed, and notwithstanding the general  rule that after the Court of First Instance has performed its ministerial duty of ordering the execution, functus est officio suo, and its part is ended,  if however a circumstance arises that ought to delay the execution, there is an imperative duty to investigate the emergency and  to order a postponement. Then  the question arises  as  to  whom the application for postponing the execution  ought  to be addressed while the circumstance is under investigation and as to who has jurisdiction to make the investigation.

Here are some possible instances that immediately present themselves, of postponement by mandatory provisions of the law.  Commentators  point out that of the  execution of a woman  who is pregnant.  For  example, the  12th of the present month  of January is fixed for the execution of the capital penalty upon  such a woman,  and on the  11th,  one day previous, a motion is presented to postpone the execution during investigation of the circumstance as to whether she is really  pregnant.  The law prescribes that  the death penalty shall not be inflicted upon a pregnant woman, nor may the sentence wherein it is imposed be communicated to her until forty days after delivery  (Penal Code, art. 104). If on the 11th of January it were clearly shown by sufficient evidence that the woman was pregnant, the law's precept must be  obeyed;  the capital penalty must not be inflicted, nor may the sentence  even be communicated to her until forty days after her delivery.  Were the penalty to be executed on the 12th of January  on the ground that this date is unalterable on  account of lack of jurisdiction in the trial court,  the  law's prohibition would  be plainly violated and the consequent responsibility unavoidably incurred.  Postponement,  alteration of the date, or fixing  an interval of time for investigating  the emergency and carrying  out the provision of the law, should the circumstance be proven, is absolutely  necessary.   No one can  doubt that jurisdiction for investigating such a circumstance can not be other than judicial, so that a proper and decisive finding may be made on the point of law.  The motion on this particular incident of the  execution must necessarily be presented to the court, for to  no body can it  imply a change or alteration of the judgment,  because the  judgment remains in force and will be executed, as res judicata, and finished; it would not be a thing decided and finished if it were to have been executed on some particular date, since this is  not  a part of the judgment,  for neither the judgment of the lower court nor the affirmation of the  Supreme Court makes any mention of the date of execution.  And if it did, for that very reason the courts  must be applied to for securing compliance with this article 104 of the Penal Code.  So it is that it is always the courts  to which application must be made for postponement of the execution, for deferring the time fixed therefor, because the law  so directs, and the court is, beyond  any doubt at all, the only authority competent to apply this provision  of the Penal Code.

Another instance where the law intervenes is that where insanity develops  in the convict before the  date fixed for the execution.  The same reasons as set forth for the preceding instance hold good in this one, wherein it is the Penal Code  itself which positively determines the  function  of the trial court to pass upon and  decide the matter.   (Penal Code, art. 8, par.  2.)

An instance of the discretionary power (arbitrio) of the court that may be pointed out  is that of identification of the convict to  be executed.  A capital sentence has  been passed upon Pedro Fernandez,  and one  Pedro Fernandez has been a prisoner at the disposition of the court wherein all the proceedings in the case  have been had; but before the date fixed for the execution it has been discovered on sufficient evidence that  the prisoner Pedro Fernandez who is to be  executed  is not the Pedro Fernandez of the  complaint  in the case and of the judgment;  and as the judgment cannot be executed upon any but the real culprit the execution must be postponed in order not to incur the risk, the inhumanity, and the iniquity of hanging an innocent person.  It is an  obligatory case of deferring  or postponing the execution, and no one can doubt that it is the trial court, and not the executive authority, which has power to make the proper finding on the identity put in question, and  therefore to it must be presented the application  to postpone the execution for the purpose of investigating such emergency.

In these and analogous cases  that may occur,  a genuine point of law, and  not of administration, presents itself, an incidental question of exact and strict law, of indisputable judicial  character, which  necessarily  has to be inherent fn the  principal question decided, wherefore,  the court. having jurisdiction over the  principal  question, must  have jurisdiction over the accessory.

Now an instance is presented, in the case at bar, which is neither one of justice nor strictly of law. The parties have submitted for our decision as a stipulated fact that the reason  for the motion  presented to the respondent judge  for ordering the postponement he decreed was the need of allowing time for action on the petition for pardon or commutation presented to the Governor-General,  or, briefly, an act of clemency.  This is an instance of postponement by command of the King under the common law.

The whole question now resolves  itself into these definite terms: To whom should  have been presented this application for postponement  of the execution  of  the capital sentence fixed  by the  respondent judge for the 12th day of January,  1915?  It  is the most genuine instance of a reprieve the postponement of a sentence of death.   Webster defines the word reprieve as "the temporary suspension of the execution of a sentence,  especially of a sentence of death," and there are not lacking those who  maintain that this word ought to be applied only to postponement of a sentence of death.

In order to correct or prevent misconceptions some preliminary observations should be made: first, that reprieve, the postponement of execution of the judgment, is  not a suspension of  the  judgment itself, the distinction  being that the postponement  merely  puts off or  defers the execution of the judgment to a certain day, while suspension of the judgment is for an indefinite time (Carnal vs. People, 1  N. Y., Parker Cr. R., 262); second, that postponement of execution of the judgment does not in any way  affect the executory nature thereof, and  it will be carried out on the day to which it has been set forward.  What is done is to defer or postpone the execution.

In resolving the question we decide that there can be no doubt  that the Governor-General, who has the power to pardon the convict or commute the penalty imposed  upon him, has necessarily and  as a consequence the power to defer or postpone the  execution of the sentence, in  order to enable him  to consider the petition  presented to him and to exercise in due form such a sovereign prerogative; and it is clear that to him can be addressed the  application for postponement of the  date of execution fixed by the court in order that  he may pass upon the petition which he has under consideration.  But must the application for reprieve or postponement  necessarily be presented to the Governor-General, along with  the  petition for pardon or commutation of the penalty, as the only one who has authority in such case ?  This we do not find to  be determined by any  provision, while the  contrary is laid down as  the principle  in standard text books.   The action  of the  respondent judge may have been  guided by the principle that both fixing and postponement of a day for the execution of a convicted criminal is, under the common law, a judicial power and cannot be exercised by a governor unless he be expressly authorized  by the Constitution.  He may also have been guided by the principle that in the common law the power to postpone the  execution, to reprieve, is vested in the courts as the agents of the King, who is regarded as the true source of  justice and  to whom appeals  for administering it are not made in ordinary cases but only in those of extreme  necessity. (State vs. Hawk, 47  W Va., 434; 34 S. E., 918.)

Finally,  a consideration that decides the question involved in the present certiorari  proceedings is the principle, well authenticated, that in the common law  a reprieve or postponement  can be granted by either one or the  other, either by the King under  his pardoning power or by the court; and that every court which has the power to order an execution has also the power to order its postponement. (Clifford vs. Heller, 63 N. J. L., 105; 42 Atl., 155; 57 L. R. A., 312.)

Only by demonstrating that all these principles are  incorrect,  and the only correct one is that the power to postpone the  execution rests  exclusively  with the  Governor-General and that the trial  court cannot exercise it, can it be concluded that the respondent judge has exceeded  his authority  in the exercise of his jurisdiction and has given cause for the remedy sought.   As this has not been demonstrated,  his action appears  to be lawful.

There is no ground for annulling the order of the Court of First  Instance  of  Cavite sought  to be reviewed in the present certiorari proceedings; without special finding as to costs.  A copy of this final judgment will be transmitted to said court.  So ordered.

Arellano, C. J., Torres and Araullo, JJ.

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CARSON, J.,

The object sought to  be attained by  the Attorney-General by the institution of these certiorari proceedings is to  have this court  declare null, void, and without  effect an  order entered in the  Court of First Instance of Cavite, suspending the execution of a death penalty from January 12, 1915, the day  originally set  for the execution by a former order of that court, until  January  27,  1915, in order to give the convicts a suitable opportunity to make application for executive clemency.

It is admitted that this  Court should  not issue the writ unless it appears, either that the judge  of the court below had no jurisdiction  or legal power to issue such suspending order, or that in doing so he abused the discretion conferred upon him in that regard.  It is not contended, nor can it be successfully maintained, that if the judge  below had legal power to suspend the execution there was  any abuse  in  his discretion  in suspending it for fifteen days. It is admitted that if the trial judge had any jurisdiction in the premises, the time allowed was neither excessive nor unreasonable.  It is clear therefore that the only real question involved  in  these  proceedings is  whether a judge of a Court of First  Instance, charged with  the execution of a death  sentence, has legal  power, after the judgment imposing sentence has become final,  and after  he has set a day for its execution,  to  suspend the  execution  of  the sentence temporarily  (for a short, definite and reasonable period), in  order  to  give to the accused a suitable  opportunity to submit an application for executive clemency. It is contended  (in the language of the dissenting opinion) that "the moment  a sentence in  a criminal  case  becomes final, the judicial department has lost its jurisdiction over the person of the defendant;" and that "a distinction must be made between suspensions before the sentence becomes final, and  suspensions after the sentence becomes final. The former is within the jurisdiction of the court.  The latter suspension is a reprieve or a species of pardon which the courts cannot exercise."

To my mind the reasoning of the prevailing opinion, prepared by Chief Justice Arellano, satisfactorily establishes the power of the courts to suspend temporarily the execution of a capital penalty in order to secure and conserve any legal right asserted on behalf of a prisoner held under sentence of death, based upon grounds arising after judgment has become final,  the adjudication of which does not challenge the validity of  the judgment convicting and sentencing the convict, or involve a review or reconsideration of the proceedings upon  which it rests.  Among such grounds  are the insanity or pregnancy of the convict, the non-identity of the prisoner with the person actually convicted and sentenced, the lack of suitable opportunity to be heard on an application for executive clemency, and the like.  This separate opinion is, therefore, intended merely as an amplification of the prevailing opinion.  In it I shall discuss more especially the contention  of the Attorney-General against the existence of such power in the courts, based on the assumption that its exercise involves an invasion of executive authority; and I shall endeavor also to set forth at greater length the statutory provisions and the citations from common and civil law authorities which seem to me leave no room for any real question as to the existence of such powers in the Courts of First Instance.

Having stated affirmatively just what I conceive to be the real issue  involved  in these proceedings, perhaps  it will make for clearness  to set forth also at the outset and as summarily as may be, some cognate or closely related questions which, although not submitted for adjudication, have been injected into the discussion and have tended to create some confusion and  uncertainty in the citation of authority and the reasoning of counsel upon the real issue in  the case at bar.

1. There is no question here of the power of the courts to grant indefinite, permanent or conditional suspensions of the execution of sentences pronounced in criminal cases.   All are agreed that in the absence of statutory authority, it does not lie within the power of the courts to grant such suspensions.   The allowance of a permanent, indefinite or conditional suspension of execution of a sentence lawfully imposed is in effect a grant of a pardon more or less absolute.  The exercise of such a power is not expressly conferred upon the courts in this jurisdiction, nor is it inherent in the judicial function.  The right of the courts to grant such suspensions of sentence has been quite uniformly denied,  except  in a few States wherein it is.held that power to grant indefinite suspensions of prison sentences has been conferred upon the courts by constitutional or legislative enactment; and  it is worthy of note that most, if not all the citations of authority to which our attention has been directed, wherein the authority of the courts to suspend execution of sentences  has been denied, are cases wherein attempts were made to grant indefinite,  conditional, or permanent suspensions.
   
   
2.  There is no question here of an attempt to  modify, alter or amend a final judgment convicting and sentencing the defendant in a criminal case.  We have frequently decided, in line with the uniform doctrine of the courts  generally, that after a judgment imposing sentence in a criminal case has become final,  there is no power in the courts to alter, modify or amend it.   Mistakes of law or fact cannot then be corrected by the courts, and if by the production of newly  discovered evidence, or otherwise,  a  doubt can  be raised as to whether the accused was justly convicted, recourse for  relief must be had to the pardoning power of the Chief Executive.  But the temporary suspension of an order fixing  the  time for the execution of a capital  sentence, in order to secure a legal right of the prisoner arising after the imposition of sentence,  in no wise tends to alter, modify or amend  the judgment convicting the accused and imposing sentence upon  him.
   
   
3. This is not a question of the suspension of the execution of a prison sentence.  It is a suspension of the irremediable execution of a capital penalty.  In the very nature of things, a clear distinction exists, and has been universally recognized by the courts, in the proceedings looking to the enforcement of execution of the different classes of penalties prescribed by law.  As we shall presently see, the enforcement of the execution of capital penalties is vested wholly and exclusively in the Courts of First Instance, acting through their proper officers, the judges and the sheriffs; so that the person of the convict is never turned over to the executive department of the Government for execution of the sentence. The contrary rule appears to prevail in  the enforcement of the execution of prison sentences.  Care, therefore, must  be exercised to distinguish the reasoning of judicial and textbook authorities in treating of  suspensions of execution of the different classes of penalties.  There are some that deny the applicability to prison sentences of the common law rule referred to by the Chief Justice, but none has been cited, and a diligent search has failed to disclose  any case,  denying  the existence of that rule in relation to the suspension of the execution of death penalties.
   
   
4. We are not now considering the suspension of execution of a part of a sentence.  Some questions have arisen as to the power of the courts to suspend a sentence in part without suspending it in  its entirety.   Such questions have no place in this discussion.
   
   
5. We are not dealing with the exercise of a power expressly regulated or controlled by statutory enactment.  In a few States attempts have been made  by legislative enactment to restrict or control the exercise by the courts of power to suspend the execution of sentences, either temporarily or permanently; but we are not here concerned with the discussions which have arisen under such statutory enactments, since no legislation of this kind has been adopted in  these Islands.
   
   
6. We are not here concerned with any question as .to the abuse of discretion by the judge  below in the exercise of the power to suspend.  Should the judge of a Court of First Instance abuse his discretion in this regard by repeated suspensions without reasonable grounds  therefore,  or by suspending the time fixed for the execution to so distant a date as to amount to an indefinite suspension, it can hardly be doubted that this court has  the power, in appropriate proceedings, to compel him to perform the duty imposed upon him,  and to proceed to the execution of the sentence without unnecessary or unreasonable  delay.  But no abuse of discretion of the trial judge is insisted upon at this time; and, in any event,  arguments based on the possibility of abuse of discretion have no proper place in an inquiry as to the existence of legal power in a particular case in the judge of a court of general jurisdiction duly  appointed by the Governor-General, by and with the consent of the Commission.
   
   
7. We are not dealing with a power to reprieve in the sense in which that word is used in connection with the exercise  of executive clemency by the authority in  whose hands is vested the pardoning power.  True, there is little or no difference in effect between a temporary suspension of execution of a capital sentence granted  by the Chief Executive and such a suspension when  granted  by the courts.  Both have the effect of staying the execution without impairing or affecting the judgment convicting and sentencing the convict.  Both are referred to by the law writers as reprieves or respites.  (Bishop's New  Criminal  Procedure, vol. II, par. 1299.)   But  the sources and origin  of the power as exercised by the courts and the Chief  Executive,  are wholly  distinct,  as  also  are the grounds upon which it is exercised by the different departments of the government.  As an incident to the pardoning power, reprieves  are granted as an act of grace, and like pardons may be granted in the arbitrary discretion  of the Chief Executive, without assigning and indeed without the existence of any special reason therefor.  On the other hand, suspensions of executions of capital penalties, when granted by the courts, although sometimes  called respites  or  reprieves, are in truth no more than stays of execution, which should only be granted for cause  and in the exercise of a sound judicial discretion, the power of the courts in this regard being derived from the inherent necessity for its exercise in order to secure some legal right of the prisoner arising after judgment has become final.

No one has ventured to  question the power of judges of the Courts of First Instance, under the system of criminal procedure in force in these Islands prior to the transfer of sovereignty to the  United  States, to issue the necessary autos (orders) for the  temporary  suspension of the execution of death sentences.  Under the  Spanish  law  of procedure in criminal cases, there could be no doubt as to the power of those judges to grant temporary suspensions of executions of capital sentences, not merely to secure the legal rights of the convict arising after judgment imposing sentence has become final, but also in any case wherein  a suspension was deemed  necessary to secure the orderly and  decorous course of the proceedings.

That such power existed becomes manifest from  the most cursory examination  of  the procedure marked  out by Spanish  law for the execution of capital sentences.  It appears  by necessary  implication from the  provisions  of articles 949 to 959 ^[1] of the "Enjuiciamiento Criminal" and the annotations to those articles in the "Compilaci6n Refor mada" by the author,  Hermenegildo Maria  Ruiz y Rodriguez; and it may fairly be inferred from the terms of the royal  decrees  communicated to  the captains-general  of Cuba,  Porto Rico,  and the  Philippines on June 4, 1849,^[2] and July 8, 1863.   Indeed, as indicative of the  powers and duties of the  courts under the  former law, I need  only refer specifically to the  provisions of  two  of  the above-mentioned articles,  956 and 957, which  prescribed that the Court of First Instance of the  province wherein the execution took place should open session and  continue sitting from the moment the convict left the gaol,  in which he was detained, on his way to the place of execution,, until it had received the proper official  report  of his execution; and that the secretary of the court and the alguacil  (sheriff), commissioned  for that purpose, should proceed  with  the convict to the  place of execution.

In like manner the power of the courts in this regard may  fairly  be inferred from those provisions  of Spanish substantive law which  clearly recognized  the existence of I legal rights to a  suspension of an  order for the execution of a  death penalty, which might arise  after the sentencia (sentence) had become final.   Thus article  104 of the Penal Code prohibits the execution of a pregnant woman in ex- press  terms.  So also,  the Spanish law, like the  common law of England, forbade the execution of an insane person. And, of course, it had in contemplation a legal remedy for one held a prisoner under sentence of death, claiming his non identity with the accused who had been  actually tried and sentenced, a claim which has sometimes been  made in cases  of escapes and recaptures of convicts held under sentence of death.  (U. S. vs. Santos, 18 Phil. Rep., 66.)

My Filipino associates, learned in  the law formerly in force in these Islands, assure  me  that the  power of  the judge of the Court of  First Instance to suspend  the execution of a sentence of death in such cases was so clearly implied in the procedural and substantive law that a question as to  his jurisdiction could hardly have arisen.  Mr. Justice Torres tells  me of a case  which came under his personal observation during his service with the audiencia of  Cebu.  It appears that sentence  of death in a case arising in Mindanao having been affirmed by the audiencia of Cebu and the record having been remanded to the judge of the Court of First  Instance who imposed the sentence, and the date having been set  for execution, some question arose as to whether the sentence could be executed under the conditions  then  existing.  Confronted by the  law of necessity, "the  great master of things,"  the trial judge in the exercise of  his sound judicial discretion suspended the order fixing the date of the execution for three days, after which the penalty was duly enforced.  Thereafter the trial judge, in compliance with the  rules of procedure laid down in such cases, officially reported his action to the audiencia, which ordered the report filed with its approval, although, due to  the lack of prompt means of communication, this official report was received long after the date originally set for the execution, the date of the order suspending the execution,  and  the date  when the execution actually took place.   It must be remembered that in  former times the death penalty was usually inflicted as near as practicable to the spot where the crime was committed, and often in remote  provinces cut off from communication with either the Chief  Executive or  the appellate court by days  and even weeks of travel.   Hence,  in the very nature of things, it was necessary to confer upon the local judges charged with the execution of capital penalties such powers as might be necessary to secure the legal rights  of  prisoners held under sentence of death, and  to make certain the  orderly and decorous execution  of the  solemn judgments of the courts imposing such sentences.

Except in  so far as it is modified by the provisions of Acts Nos. 451 and 1577  of the Philippine Commission, the law touching the execution of death  sentences  remains unchanged since the American occupation;  unless it be held that it has been repealed in whole or in part, by necessary implication, as a result of  organic changes in the principles of government incident to the assertion of American sovereignty over the Islands, or as a  result of the adoption of  a  modified  system of procedure  in criminal cases, modelled  on American and English  precedents and set forth in General Orders, No. 58, which, however, contains no provisions expressly dealing with the questions now under consideration.

Let us first examine the express amendments of  Spanish law in this regard as found in Acts Nos. 451 and 1577, the pertinent provisions of which are as follows.

Act No. 451, enacted  September 2,  1902:

"SECTION 1. The use of the garrote as an  instrument for the execution of criminals hereafter condemned to death is hereby abolished, except as hereinafter provided.

"SEC. 2.  All persons  who  shall hereafter be  finally sentenced to incur the death  penalty, except as hereinafter provided, shall be sentenced to be executed by being hung by the neck until  dead, and shall be  so executed.  The execution  shall take place at the time  and place  and by the persons prescribed by the existing law or  by such law as may be  hereafter enacted.

"SEC. 3. This Act  shall not apply to  pending prosecutions, nor to prosecutions hereafter instituted for offenses heretofore committed, punishment for which is the death penalty. As to all prosecutions in this section named, the method  of execution  shall be such as is provided by the existing Spanish law."

Act No. 1577, enacted December 18, 1906:

"SECTION 1. Hereafter the execution of all criminals finally sentenced to incur the death penalty  shall take place inside the walls of Bilibid prison in the city of Manila, and within an inclosure to be erected or arranged for that purpose, if none suitable  exists, under the direction of the Director of Prisons, which inclosure shall  be higher than the gallows and be so constructed as to exclude entirely the view of persons outside.  For the purpose of carrying into effect all such executions of the death sentence the Director of Prisons shall perform the duties prescribed  by existing law for sheriffs of the Courts of First Instance; the  order of execution shall be directed  to  him instead of to the sheriff of the court, and he shall return to the court the order  of  execution, duly certifying thereon that  he has complied  therewith  in the manner prescribed  by law for sheriffs of the courts.   Hereafter it shall not be necessary for the clerk of the  Court of First Instance to  witness the execution, nor  to  certify said act  to the court.  Such executions shall be  conducted  by the persons prescribed by existing law for the conducting of  executions at said  institution or by such law as may be hereafter enacted."

"SEC. 3. All provisions of the Spanish  Penal Code, of Act Numbered Pour hundred and fifty-one of the Philippine Commission, and of any other statute, rule, regulation, or order in conflict or inconsistent with the provisions of this Act are hereby repealed: Provided, That the terms of this Act shall  not apply to the Moro Province, in which  province the laws in force with respect to executions at the time of the passage of  this Act shall  continue in full force and effect."

It will readily be seen that these statutes leave in full force and  effect the "existing law" touching the execution of death penalties, save only in so far as they are "in conflict or inconsistent" therewith.   There is nothing in either Act in conflict or inconsistent with  the provisions  of Spanish law giving to the judges of the Courts of First Instance charged with the execution of death penalties discretionary control over the proceedings, at least to the extent necessary to secure the legal  rights of prisoners held under sentence of death, as above set forth.   On  the contrary, the law expressly recognizes his jurisdiction in the premises.  And it will be observed that it places the exclusive control of the person of the  accused  and  of the execution of the  death penalty in the hands of the judge of the court and his ministerial officer, the sheriff.  "For the purpose of carrying into effect" the execution of the  death penalty the Director of Prisons performs "the duties  prescribed by law for sheriffs  of Courts of  First  Instance."  He  acts  exclusively upon the order of  the court, and his return "certifying compliance therewith  in the manner prescribed by law for sheriffs of the courts" is made to the court itself.   Neither the person of the prisoner nor the conduct  of the proceedings is turned over to the executive authorities as such, so that the execution of a  death sentence may legally take place wholly without  their  knowledge  or  intervention.

Having examined the express provisions of law as found in the statute books, and having glanced  at the practice and procedure in  force for more than half a century (at  least since the year 1849, the date of the above mentioned Royal Decree);  and not having found anything  therein which appears to sustain the Attorney-General's contentions as to a lack of legal power in the respondent judge, I come now to consider those contentions which rest upon the theory of the repeal, by necessary implication, of any provisions of Spanish procedural law conferring such powers on the courts.

It is said that the exercise of such power by  the courts would amount to an invasion of the pardoning power of the Chief Executive under American  sovereignty; and further, that it would be in  direct conflict with the well recognized principles of practice and procedure in the courts of the United States and England, upon which  the present system of criminal procedure in these Islands is modeled.

These contentions may well be considered together, since the reasoning and citation of authority  for or against one proposition will, speaking generally, serve a like purpose as to the other.

I confess I  am wholly unable to comprehend an argument which inveighs against the concentration  of the power of government in one hand, whereby the "common people" are "governed by the whim or caprice of one man;" which lauds the system whereby, under prescribed law,  the  powers of government are "taken from the hands of one man and distributed  into separate and distinct  departments;" which deprecates the invasion by one department of the government of the functions of the other; which deplores the "days in the  Philippines" when "one man made the  law, interpreted the law and enforced the law;" which reflects upon the former system of government for its alleged failure to maintain a strict line of demarcation between the judicial and administrative functions of the government; and concludes by proposing to take the jurisdiction and legal power to adjudicate legal rights asserted by a prisoner and recognized in the substantive law of the land out  of the hands of the courts, who were clothed with such jurisdiction under the Spanish law, and to vest the exercise of these peculiarly judicial  functions  in the  Chief Executive as a matter of mere  grace or executive clemency.

To support such a contention by the assertion that the courts "have no monoply over the fountains of justice," in the exercise of his powers to extend executive clemency by the grant of pardons, will  be any less likely than the courts themselves to do justice and to adjudicate righteously the prisoner's claim of a legal right, is, as it seems to me, to deny the very premises upon which those who have contended for a strict, separation of the functions of government into separate departments have  always rested their contentions.

Whatever defects may be attributed to the Spanish system of procedural law in force in these Islands at the date of the American occupation, I doubt much that there is any just ground for criticism on the ground of a failure to make due provision  for the strict demarcation of the line marking the separation of the judicial and administrative branches of the government.  And however this may be, it is certain that the former law clearly recognized the distinction between the functions of the two departments in relation to claims of right on behalf of even the most hardened criminal convicted of the commission of a capital offense, limiting the powers of the executive to the exercise of acts of grace and clemency; and prescribing the duty of the  courts to adjudicate and determine all questions of legal right which might properly arise in the course of the trial, conviction and execution of the accused.

I think I have already demonstrated the lack of  foundation, under both Spanish and  American statute law, of the contentions of the Attorney-General,  in so far as  they are based  upon the  assumptions  (again making use of the language of the dissenting opinion)  that after final judgment in a  capital case, "its execution has passed into the executive department of the Government," and that, "the moment a  sentence in a criminal case becomes final, the judicial department has lost its control over the person of the defendant."  I shall, therefore, content myself on this branch of the argument by a reference to the statutory provisions hereinbefore cited.

The lack of substance in the contentions of the Attorney-General, based on the fear of possible conflicts in the exercise  of the power to suspend the execution of capital sentences by both the executive and judicial departments of the Government, must become apparent upon a moment's consideration of the fundamental difference, already indicated, between the nature, origin  and mode of  exercise of this power by the judiciary and by  the Chief Executive.  The power of the Chief Executive to grant reprieves is merely an incident of the pardoning power.  It is always an act of grace.  The Chief Executive never orders  the execution  of a death sentence.  As we have seen,  the power so to do is vested exclusively in the courts.  His authority in the premises,  unless he remits the  penalty outright, is limited  to the extension of the time which  may be fixed for the execution by an order  of the court.   If thereafter the convict is finally executed, the execution takes place, not by virtue of the order of the Chief  Executive extending  the time already fixed therefor, but by virtue of the order of the  court as extended by him.

No one questions that the pardoning power of the  Chief Executive is above and beyond control by the courts, so that no order of the court directing the execution of  a death sentence can be enforced so long as it is reprieved, respited or stayed by an appropriate executive order.

On the other hand,  since the intervention of the  Chief Executive is strictly an act of grace, there can be no ground of complaint on his  part,  or of conflict with his authority, Director of Prisons vs. Judge of First Instance of Cavite, should the courts see fit to extend the time set for the execution beyond the time to which he may have thought proper to respite it.   His intervention is not  for the  purpose of hastening the date of execution. It is purely an act of executive clemency;  and while  he himself,  having once granted a reprieve, may be unwilling to again  extend  the time set in the court's order, he  can  have  no well founded objection  to a respite or extension of the time to which he may have suspended the execution, if granted by the court itself.

It follows that in any case wherein both an executive and judicial suspension of an order fixing the  time for the  execution of a death penalty have been  allowed, there can be no conflict of authority if full force and effect be given to both of. the orders suspending the execution,  which in that event will take place on the last date  to  which the time set in the original order is suspended by  either executive or judicial respite.

A somewhat extended examination of  English and American authorities, both textbook and judicial, has developed nothing which  appears to me  to support  the contentions of the Attorney-General in this  regard.

That the power to suspend the execution of sentence, either before or after judgment, belonged to every trial court, as "of common right" seems to have been universally recognized at the common law, at least in  relation to capital cases.  (2 Hale P. C, chap. 58, p. 512; 1 Chitty Crim. Law, 1st ed., 617-758; Hawke P.  C, Book 2, chap. 51, par. 8; Blackstone, Book 4, chap. 31.)

Thus Blackstone says: "A reprieve, from reprendre  (to take buck), is the withdrawing of a sentence for an interval of time; whereby the execution  is suspended."

And in his discussion of judicial reprieves he says: "This may be, first, ex arbitrio judicis (at the  will of the judge) ; either  before or after judgment; as where  the judge  is not satisfied with the verdict, or the evidence is suspicious, or the  indictment is insufficient, or he is doubtful  whether the offense be within clergy; or sometimes if it be a small felony, or any favorable circumstances appear in the criminal's character,  in  order to give room  to  apply to the crown for either an absolute or conditional pardon. These arbitrary reprieves  may  be  granted or taken off by the justices of gaol delivery, although their session be finished, and their commission expired; but this rather by common usage, than of strict right."

And again: "Reprieves may also be ex necessitate legis (from legal  necessity) :  as,  where  a woman  is capitally convicted, and pleads her pregnancy;  though this is  no cause to stay the judgment, yet it is to respite the execution till she be delivered."

And again: "Another cause of regular reprieve is, if the offender becomes non compos between the judgment and the award of execution: for regularly, as was formerly observed, though a  man  be compos when he commits a capital crime, yet if  he becomes non compos after, he  shall not be indicted; if after  indictment, he shall not be convicted; if after conviction, he shall not receive judgment; if after judgment, he shall not be ordered for execution: for "furiosus solo furore punitur" (a madam is punished by his madnesss alone), and the law knows not but he might have  offered  some reason, if in his senses, to have stayed these  respective proceedings."  (Cooley's Blackstone, 4th ed., Vol. II, pp. 394-5.)

But we are told that the doctrine thus announced by the great common law authorities "is an antiquated, threadbare doctrine" which can  have no weight in the disposition of the case now before us.

I think, however, that the bare assertion of that proposition is not sufficient, without  citation of abundant authority, to sweep away  a doctrine so deeply imbedded in the system of criminal procedure upon which the modem system now in force in England and the United States hap its solid foundation; and this especially when it is made for the purpose of denying the existence of legal powers in the courts in  these  Islands on the ground that their exercise  is in conflict with the practice and procedure in the  United States.  No authority has been  cited, either textbook or judicial, which denies the continued existence of the common law doctrine in full force and vigor in American jurisprudence in  so far at  least as  it relates to the powers of the courts to suspend sentences in capital cases. On the contrary, as I shall  endeavor to  demonstrate, the highest authorities, both textbook and judicial, appear to be in substantial agreement as to the continued existence of such powers in the courts down to the present day.

No writer upon criminal practice and  procedure in the United  States is entitled to greater deference and respect than Bishop, and perhaps  the following citation from the last  edition of  his work on  "Criminal Evidence, Pleading and  Practice,"  published in the year 1896, should be sufficient in itself to sustain my position in this regard.

"Respite Reprieve. The  law  of respite or reprieve appears to apply only to capital  sentences.   The two term? are nearly synonymous.  Either signifies the suspension, for a time, of the execution  of a sentence which has been pronounced.  Every court  'which,'  says Hawkins, 'has power to award an execution,' may grant it of its own sentences.  In  England, it appears, a reprieve  may be ordered by the judges even in vacation; and perhaps the same may be done under the common law of this country. The  crown, also, has the power of reprieve  in England; and  so  have our executives, under some, at least, of the constitutions.   It is a  part of the power of  pardon, and included therein.  If a  statute requires a respite, it becomes a right in the prisoner." (Bishop's New Criminal Procedure,  Vol. II, par. 1299.)

In support of these  various propositions, abundant citations of authority, ancient and  modern, are to be found in the notes attached  to the text.

A great array of cases, dealing with the general subject of the power of the courts to  suspend sentences and the execution of sentences, will  be found collated in the exhaustive notes to two very  recent cases,  in the Lawyers Reports Annotated (new series,  vol. 33,  p. 112,  and vol. 39, p. 242).  I have examined most, if not all of  these cases which are to be found in our library,  and I  think I have examined all the cases submitted by counsel or in the consultation  chamber.  I  have found none which  questions the doctrine laid down by Bishop as to the power of the courts in capital cases.  On the contrary,  it appears to be  recognized as in full force and effect by all the courts which have dealt with  the subject, except in so far as  it has been modified in a few States by express constitutional or legislative  enactment.   It would be a mere affectation of learning and research to set out at length  the  numerous cases on the subject which can  readily be found in the above-mentioned  reports, and to do so would  extend this opinion to an  intolerable  length.   I shall content myself therefore  with  a few  citations bearing directly  on the questions now under consideration.

The supreme court of Tennessee,  in  the case of Fults vs. State  (34 Tenn.  2 Sneed, 234), in ruling that the courts of that State "have control of criminal cases" after final judgment so far as necessary to suspend the execution thereof, "sufficient reason therefor appearing," observed:

"There are  many cases, no doubt, where it is necessary and proper to suspend the execution of the final judgment. For instance,  where the prisoner has become non  compos between the judgment and the award of execution; or, in order to give room to apply to the executive for a reprieve or pardon:  or, in special cases, where  the  necessity and propriety  of such course are rendered evident to the  mind of the court.   (Allen vs. State, Mart. & Y., 297; 4 Bla. Com., 395.)

"In Allen's case it was considered that a right to petition the executive for a pardon was a constitutional right, and as the prisoner was  convicted of manslaughter, and sentenced to  be branded in the hand,  under the law then in force,  time was allowed him, until  the next  term, to petition for a pardon."

In dealing with the alleged conflict of powers between the judicial and executive departments  of the government, involved in the exercise by the courts of that State  of the power to suspend sentences after conviction, the New York Court of Appeals, in the case of People vs. Court of Sessions of Monroe County, decided in 1894 (141 N. Y., 288), held as follows:

"The power to suspend sentence and the power to grant reprieves and pardons, as understood when the constitution was adopted are totally distinct and different in their origin and nature.  The former was always a part of the judicial power; the latter was always a part of the executive power. The suspension of the sentence simply postpones the judgment  of the court temporarily or indefinitely, but the conviction and liability following it, and all civil disabilities, remain and become operative when judgment is rendered. A pardon reaches both the punishment prescribed for the offense and the guilt of the offender.  It releases the punishment, and  blots out of existence the guilt, so that  in the eye of the law, the offender is as innocent as if he had never committed the offense.  It removes the penalties and disabilities,  and restores to  him  all his civil rights.  It makes him, as  it were, a new  man, and gives him  a new credit and capacity. (Ex parte Garland, 71 U. S., 4 Wall., 333, 18 L. ed.,  366; United States vs. Klein,  80 U.  S., 13 Wall., 128, 20 L. ed., 519; Knote vs. United States, 95 U. S., ,149, 24 L. ed., 442.)

"The framers of the federal and state constitutions were perfectly familiar  with the principles governing the  power to grant pardons, and it was conferred by these instruments upon the executive with full knowledge of the law upon the subject, and the words  of the constitution  were used to express the authority formerly exercised  by the English crown, or by its representatives in the colonies.  (Ex parte Wells, 59 U. S., 18 How., 307, 15 L. ed., 421.)  As  this power was understood, it did not comprehend any part of the judicial functions  to suspend sentence, and it was never intended that the authority to grant reprieves and pardons should abrogate, or in any degree restrict, the exercise of that power in regard to its own  judgments, that criminal courts had so long maintained.  The two powers, so distinct and different in their nature and character, were still left separate and distinct, the one to be exercised by the executive, and the other by the judicial, department.   We therefore conclude that a statute which, in terms,  authorizes courts of criminal jurisdiction to suspend sentence in certain cases after conviction, a power inherent in such courts at common law, which was understood when the constitution was adopted to be an ordinary judicial function, and which, ever since its adoption, has been exercised  by  the courts, is a valid exercise of legislative power under the constitution.  It does not  encroach,  in any just  sense, upon the powers of  the executive, as they have been understood and practiced from the earliest times."

The power of the courts to reprieve a prisoner, after sentence on a capital conviction, was discussed in  Miller's Case (9 Cow.,  N. Y., 730),  in which it was held  that the  court  had power to stay the execution in a  capital case, notwithstanding the  power to grant  reprieves  and pardons rested with the executive.  In that  case the court said:

"Far be it from me to  call in  question the  wisdom of placing the power of granting reprieves and pardons in the executive.  All that I contend for is, that although he in- dubitably has the  ultimate or superior power, and  that there is no power which can prevent him from  reprieving, yet that there is nothing in the Constitution annulling the qualified limited power of  the judges.  Constitutions, like laws, should receive such a construction as  will advance the remedy and suppress the mischief.  The object of this provision is to enable the executive, in all cases, to prevent injustice.  The limited  power of the judges is only to remove an obstruction of their own  creating,  in  the  way to the mercy  seat a power necessary to enable  the executive to exercise his  prerogative upon every suitable occasion a power  which has been sanctioned by the experience of our ancestors  for ages,  and which was the offspring  of the imperious dictates of justice and humanity."

The supreme court of Indiana, in the case of Parker vs. State, 1893 (23 L. R. A., 859), solemnly reversed a ruling in a former case (Butler vs. State, 97 Ind.,  373),  based on the theory of conflict of powers in the executive and judicial departments,  to the  effect that "Where  the  constitution confers upon the executive the exclusive power to remit fines and forfeitures, and to grant reprieves, commutations, and pardons, a statute authorizing the supreme court, on an appeal from a judgment of conviction,  to suspend sentence of death and to remit forfeitures, is unconstitutional."  The doctrine thus announced in the former case was repudiated in the following terms:

"We are aware that a different conclusion was reached by this court in the case of  Butler vs. State (97 Ind., 373), but we cannot give our assent to the conclusion reached in that case.   The error in that case consists in assuming that the granting of stay  of execution by this court in case pending before it is a reprieve within the meaning of section 17, article 5, of the Constitution of the State.  A conclusion based upon an erroneous premise is seldom, if ever, correct. In  so far as that case  conflicts with the conclusion reached here, it is  modified."

Citing a number of  authorities, the  court  held that:

"Granting a stay of execution by an appellate court pending an appeal  in a capital case is not a reprieve  within the meaning of a constitutional provision giving to the governor the power to grant reprieves; and a statute authorizing such stay declares  the inherent power of the court, independent of  any statutory  provision."

In the recent case of State vs. Abbott, decided February 2, 1911 (33 L. R. A., N. S., 112), in  which the supreme court of South Carolina denied the power of the trial courts to  suspend sentences  of imprisonment indefinitely or on good behavior, the court nevertheless said, after citing the common-law rule as stated by Blackstone:

"At common law there was no appeal, the trial court had no power to grant new trials in cases of treason and felony, and the punishments were often by branding or other physical infliction; and hence the temporary suspension of the sentence which would otherwise be fully suffered was necessary, to the end that the convict might not suffer the penalty without having an opportunity to apply for pardon or other relief provided by law.   On this principle of implied power arising from necessity, it was held in this state to be within the power of the court to  postpone until the next term of the court the imposition and execution of the sentence of burning in the hand, provided by law, so that the convict might apply to the governor for  a  pardon.  (State vs. Frink, 2 Bay, 168.)  But the common-law power to suspend sentence has been expressly held in  this state to be limited by this principle of necessity, as having application only to cases  where  but for a suspension, the convict would irretrievably lose some legal right.   (State vs. Chitty, 1  Bail. L., 379.)"

In the very recent case of Fuller vs. Mississippi, decided January 15, 1912, and reconsidered on  a suggestion of error March 11, 1912  (39 L. R. A., 242), wherein execution of a prison sentence had been suspended by the trial court after conviction and after the judgment  imposing sentence had become final, the court, while deciding that there is no authority of law in  that State  for the indefinite suspension of the execution  of prison sentences  by the trial courts, carefully distinguishes such cases from the cases of judicial respite or reprieve in capital cases mentioned by Chitty and Blackstone, and after an extended discussion of the doctrine of judicial reprieves or respites observes:

"As all of the early cases  which have come under our observation, upholding this power of the court, were cases wherein the death penalty  was imposed, it may be that the law relative  thereto applies  only to  capital cases.  It is unnecessary,  however, for us to so hold here, for the reason that the power to suspend  the execution of a sentence was never exercised or  claimed by the  courts at common  law, as we have  heretofore stated, except when necessary  to prevent an abuse of their process, or to prevent irreparable injustice from being done a defendant."

Finally the doctrine supported by numerous citations of authority is thus summed up in 12 Cyc, 790:

"The term 'reprieve' signifies the withdrawing of a sentence for an interval  of  time, which operates in delay of execution.   At the common law, reprieves after judgment were of three  kinds:  (1) At the  pleasure of the crown; (2)  in  the  discretion  of  the  court; and  (3)  of necessity, which latter was in the case of a  woman convict alleging pregnancy when called for sentence.  In the United States, unless the terms  on which a stay of execution may  be granted are definitely  fixed by statute,  the court may stay execution whenever it considers  that  under the circumstances of the case such action would be right and proper. Thus a stay may be granted to allow the accused opportunity to apply for a pardon, to procure a  writ of error, or to secure a certificate  of probable cause from the trial judge."

I might extend  the citations  indefinitely, but I think I have set out enough to make it clear that there is no such recognition  by  either textbook or judicial authority in the United  States of any peculiarly American rule of practice and  procedure, or of  any peculiarly  American  doctrine touching the separation of the various  departments of  the Government  as will sustain the contention that the power reposed in the Courts of. First Instance of these Islands to grant temporary judicial  reprieves or respites of the execution of death penalties, prior to the American occupation, has been abrogated, annulled or destroyed by necessary implication as  a result of the mere fact of d change of sovereignty, and  the introduction of a system of procedure and practice modeled on English and American precedents.

It will perhaps  be objected, that the more recent decisions from  which  the above citations are  taken,  were rendered in  cases  involving the suspension  of execution of prison sentences, or dealt with suspensions granted after conviction and before  the judgment became final, so that they are not direct  authority for the respite of capital penalties after  final judgment.  To  such  objection  I  would reply:

First.  That our attention  has not  been called  to any recent cases dealing with the suspension of the execution of capital  sentences except one from the State of  Oklahoma, in which State it  appears that, contrary to the practice  prevailing in most  of the  other States of the Union, the  granting of  stays of execution  of "judgments of death" by the courts, or by any officer of the State other than the governor, is prohibited by express legislative enactment even in cases of appeals.  (Opinion of the judges, 3 Okla. Crim. Rep.,  315.)  There is no express legislation in this jurisdiction conferring exclusive jurisdiction to grant reprieves, respites or stays of execution upon  the Chief Executive.

Second. That the ratio decidendi  of the cases cited and of the multitude  of cases  decided by the various  courts of the United States  wherein it is quite uniformly held that permanent or indefinite  suspensions of prison sentences by the courts constitutes an invasion of the prerogatives of the pardoning power of the Chief  Executive, while temporary  suspensions of such sentences do not constitute such  an invasion,  whether granted before, or after  conviction, or before or after imposition of sentence, clearly discloses that  there is no ground for the contention of the  Attorney-General  based on an alleged invasion of the prerogatives of the Governor-General of the  Philippine Islands by the temporary suspension of execution of a death penalty.

Third. That I have selected for citation the two most recent reported  cases touching the suspension of execution of sentences imposed  in criminal  cases  (State of  South Carolina vs. Abbott (supra), decided in 1911, and Fuller vs. State of Mississippi  (supra), decided in 1912, because in both cases it is clear from the reasoning of the opinions. that the courts of last  resort of those ancient commonwealths were of opinion that at least in capital cases the common law doctrine of judicial reprieves is no "antiquated and threadbare  doctrine;" and that  it was necessary to distinguish  the  cases  then under consideration so  as to take them out from the principles on which the common law doctrine rests.

In this connection  it may be well also to direct attention to the clear recognition,  by most  of  the American authorities above cited, of  a substantial legal right in a convict, under sentence of death, to a suitable opportunity to be heard upon an application for executive  clemency. Of course there is no legal right in the convict to  the grant of a pardon.  It is always an act of grace on the part of the Chief  Executive, and rests in his uncontrolled  discretion.  But the law having  reposed the power in  him to extend executive clemency in the exercise of his discretion, a convict under penalty of death  is clearly entitled to a suitable opportunity to be heard on  an application for pardon, Otherwise the power to pardon would be a vain thing, and the right of the Chief Executive to exercise his discretion as to  whether clemency  should or should not be extended in a particular case might  be wholly cut off and destroyed by those  charged with the  execution of a death penalty.

That this was substantially  the doctrine under the Spanish  as well as the American law will readily be deduced from the provisions  of article 954 of the "Enjuiciamiento  Criminal,"  which  forbade the  remission by the audiencia to the  trial court of its  certificate affirming a judgment in a capital case, until and unless the  audiencia had first received a formal acknowledgment from  the minister of grace and justice of any recommendation to executive clemency which may have been made by the court.   A provision which  was  based upon article 32 of the Provisional Law of June 18,  1870, touching  "el ejercicio  de  la gracia de indulto"  (the  exercise of  the  power of pardon) which prescribed that "an  application or recommendation for pardon will not have the effect  of suspending the execution of a final sentence, save only in cases in which the penalty of death may have been imposed, which penalty will  not be executed  until an acknowledgment of the application or recommendation for pardon  has been received from the government  (el gobierno) by the tribunal which pronounced sentence."

These provisions  of the  old  law have, of course,  been abrogated  under the new system of procedure on appeals, but it must be manifest that the right of a convict under sentence of death to be heard on an application for pardon has not been lost; and that  the judge of the Court of First Instance charged with  the execution  of the sentence is empowered, in the exercise of a sound judicial discretion, to secure that right to the convict by the temporary suspension of his order to the officer  acting as sheriff of his court directing that the execution take  place on the day designated therein.

It may be  well now to glance at  the authorities relied upon in support of  the  Attorney-General's contentions.  I shall limit myself to those  cited in the dissenting opinion. There are  just seven.  Of these only one (In re Webb, 89 Wis., 354), was a case involving the question of the suspension of execution of a sentence  in a criminal case.  All the others, three of which are civil cases, are rulings denying the right of the courts to change, alter  or modify in matters of substance, a judgment in a cause, either civil or criminal, which has become final a doctrine as to which we are  all  agreed.

Examining the Wisconsin case (In re Webb, supra), it is to be observed that the reasoning of the opinion in that case was directed against the power of the  courts in that State to grant indefinite or permanent suspensions of the execution of prison sentences.   The court held, in the language of the syllabus, that "after  sentence  has been pronounced in a criminal case, the court cannot as a matter of  leniency to the defendant, suspend indefinitely  its execution;" and this upon the ground that the action of "the  court in the premises" was "an attempted exercise of power, not judicial, but vested in the executive."  A conclusion with which we are all agreed.

The case from California, Baldwin vs. Kramer (2  Cal., 582), as appears on  the face of the citation in the dissenting opinion, involved merely the power  of a  court of that State to set aside its judgments after they became final and to grant a new trial.  The four cases cited from our own reports  (three  of which  were civil cases), raised substantially the same question as to the right of the courts to set  aside or amend, alter, or modify their own judgments in matters of  substance after they  have  become final; and  in these and other cases which might  be  cited we have steadfastly denied the power of the courts of these Islands so  to do.   In  the case at bar, however, there  is no question  of setting aside, changing, altering, or modifying the final judgment convicting and sentencing the  accused. The temporary stay of execution granted by the respondent judge in no wise affected the validity or the  terms of that judgment.  The order to the sheriff directing the execution of the judgment was not itself a final judgment in a criminal case.  It was merely a ministerial order issued by the judge of the court which was charged with the execution of the final judgment convicting and sentencing the  accused,  and  addressed  to the  officer acting as his sheriff.  It is true that in issuing that order the judge was bound  to exercise a  sound discretion in  fixing the  time when the execution should take place, but we  held in the case of U.  S. vs. Beecham  (23  Phil. Rep., 258) that:

"It has always been and still is the duty of the trial court, after a judgment  imposing the death penalty has  become final and the record has been returned to the court for the execution of the sentence, to enter in the record an order fixing the time and place therefor, and directing the proper officer to carry out the sentence of the court.

"After  final sentence of death  has been  rendered, the convict has no right to be present, and  there is no necessity for his presence, at the  further  ministerial steps necessary to  be taken to carry such sentence  into execution, save only upon the occasion when the death penalty is actually inflicted."

In the Beecham case we cited with approval the ruling in the case of Fielden vs. People (128 111., 595), that: "The mere naming of the day on which the sentence was to be executed was but the exercise of a ministerial power, which, at common law, was sometimes exercised by  the  sheriff, (1 Chitty's Crim. Law, 5th Am. ed., 782, 783), and  is in this State exercised by the governor in case of a temporary reprieve."

In the same case we quoted from the case of Holden vs. Minnesota (137 U. S., 483),  as  follows: "The court sentenced the convict to the punishment prescribed for the crime of murder in the first degree, leaving  the  precise day for inflicting the punishment to be determined by the governor.  The  order designating the day of execution is, strictly speaking, no part of the judgment, unless made so by statute.  And the power conferred  upon the governor to fix the time of  infliction is no more arbitrary in its nature than  the same power would be,  if  conferred upon the court.  Whether conferred upon the governor or the court, it is arbitrary in no other sense than every power is arbitrary that depends upon the discretion of the tribunal or the person authorized to exercise it.  It may be also observed that at common law the sentence of death was generally silent as to the precise day of execution."

In the case of State vs. Haddox (40 S.  E. Rep. (W. Va.), 387) the court said: "In ex parte Howard (17 N. H., 548), it is said that if, from any cause, 'the time prescribed for execution has passed, the court must make a new order, if no other disposition has been made of the case.'   Nor is the presence  of the prisoner  necessary  or required when such order is made.  He has had his trial, been convicted, and  sentenced to death.  All that remains to be done is to fix the time and carry the execution of the sentence  into effect.  Whether that time shall be short or long, on Monday or Friday, on the first or thirteenth of the month, it is for the law and the trial court to fix; and,  having  forfeited his life by his criminal conduct, he is permitted no voice in the matter.  It has nothing to do with the trial."

In the light of those decisions it cannot be seriously contended that the  ministerial  order of the judge of a Court of First Instance to the officer acting as his sheriff, issued in the absence and without the knowledge of the convict, and which under our rulings in the Beecham case, and the cases there cited, constitutes no part of the judgment con victing and sentencing him, is a final judgment in the sense in which that term is  used in the cases referred to in the dissenting  opinion.  Neither under American nor Spanish precedents did the issue of the order exhaust the power of the judge in the premises.   Should the sheriff fail for any reason to carry out the order on the day designated  or on the day to  which  the time of execution may have been lawfully  reprieved, respited, or stayed, it would still be the duty of the judge of the court charged with the execution of the sentence, to issue such new and  further orders to the sheriff, designating another day for the execution, as might be necessary to secure the final execution of the judgment imposing the death  penalty.  So  the  officer  acting as sheriff  of the court, in performing the  duty thus imposed upon him, continues under the direction and control of the court  and subject to all the lawful orders of the court, until he has made his return of the order to the court duly certifying thereon that he has "complied therewith in the manner prescribed by law for sheriffs of the court." And even  if  it were conceded that in a strictly technical sense the order of the court to the officer acting as its sheriff might be called a final order, we are satisfied  that the general power of the  court  over the proceedings had for the execution  of  a convict sentenced  to  the death  penalty is such, that,  on principle  and precedent,  an exception would have to be made with regard to such orders, to the general rule touching the loss of power of the courts over their judgments after they have become final, at least to the extent necessary to secure legal rights in the convict to a  temporary suspension of the execution, which arise after the judgment convicting and sentencing the accused has become final.  The grounds on which the general rule rests are not such as to justify  the inclusion  within  its terms of a ministerial order touching the execution of a death  penalty, issued by the judge  of  the  court charged with the execution of the sentence, to the officer acting as his sheriff "for the purpose of carrying it into effect."

The only  other  case cited  in support of the contentions of the Attorney-General is the case of Ex parte Gordon (66 U. S.,  503).  But an examination  of the opinion of the court in that case clearly discloses that it affords no authority for the denial to the courts of power to suspend the execution of sentence in capital cases to  secure legal rights arising after judgment has become final.

In that case, decided in 1862, the petitioner, sentenced to death for the crime of piracy, and alleging irregularities and errors in the proceedings, was endeavoring to  secure a review of those  proceedings, and to have the court set aside the judgment of conviction which had become final. Upon  an application for a writ of  prohibition to the Circuit Court and its officers, the court held  that it had no power to review the proceedings by appeal, or by writ of error, or  by writ of prohibition, or to examine them by a certiorari.  And the court further held that the  judgment convicting and sentencing the accused having become final and the warrant for its execution placed in the hands of the marshal, neither the court itself nor the court below had power  to recall the warrant, the case having passed out of the hands  of the court.  These observations must of course be read in  connection with the  proceedings in regard to which  they were  made,  which had  for  their object the revision and correction of alleged errors committed in the course of the trial and  in the judgment convicting and sentencing  the  petitioner.   It  will  be  seen, therefore, that the court merely announced the doctrine so frequently referred to in  this opinion, and  with  which we are all agreed, that when a judgment in a criminal case has become final,  the  courts have no power to intervene further in the  proceedings  for  the  purpose  of  revising alleged errors in the judgment,  or amending, altering or changing  it in matters of substance, except,  perhaps, to the  extent  necessary  to correct  mere  clerical errors of omission or commission.

The truth is that the opinion of the  Supreme Court of the United States cannot be called to the aid  of the contentions of  either party to the  proceedings  in  the  case at bar.  The question as to the power of  the  trial courts to suspend sentence in capital cases, or to suspend the execution of such sentences  does not appear to have been submitted to that great tribunal.   The only reference in the reports of that court  to the question  of suspensions of sentences after conviction, to which my  attention has been directed, is  to be found in  the  case of Pointer vs. United States (151  U. S.,  419), in which  the court, commenting upon an order of the trial court suspending  sentence  upon a conviction of murder on one count of an indictment, said:

"It is necessary, however, in order to avoid any misapprehension, to  say that this court  must not be understood as expressing any opinion upon the question suggested by the words of that order, whether a court of the United States, in the absence of authority conferred by statute, has the power, after passing sentence in a criminal case, to suspend its execution indefinitely, and until the court in its discretion removes such suspension. A decision of that question is not necessary to the disposition of this case upon its merits."

It will be  seen that even as to indefinite  suspensions of execution, after passing sentence  in a  criminal  case, the opinion of the court of last resort in the United States has yet to be announced, and so far as we are advised there is nothing in the reports of the opinions of that court which sustains, either directly or indirectly, the contentions of the Attorney-General in the case at bar.

In conclusion, perhaps I  should say,  that in order that there might be no delay in the publication of the judgment of the court, and at the unanimous suggestion of the members who took part in the discussion of the case, I signed the prevailing opinion, concurring with the disposition of the proceedings  then pending,  but  reserving the right to file a separate opinion,  the preparation of which before  the announcement of the judgment of the  court  would have involved some delay in the final disposition of the case.

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^[1] The ruling by the majority of the court on the motion for a rehearing, hereinafter set out on page 319, reaffirmed and adopted the reasons assigned in the prevailing opinion,  as  amplified  in the concurring opinion.

^[1] Commenting on these articles, Ruiz makes the following observations: "In  reality, the  practice is as follows: If the sentence be carried out in the capital of a district, the Court of First Instance, composed of the judge, the public prosecutor, the clerk of the court, and two alguaciles, opens session in the prison.  At eight in the morning the alcaide delivers the convict to one of the alguaciles and records in  the book the start  for the scaffold.  The convict leaves under guard, and accompanied by two priests and members of the benevolent  societies. The alguacil and the clerk of court attend to witness the execution, while the judge and the public prosecutor remain in the prison with the other alguacil.  At the same time, the criminal  branch  of the audiencia meets in the courthouse and the judge reports  to it the departure of the convict from the prison. When the execution is over, the clerk of the court issues a  certificate and delivers it to the judge, who in  turn forwards it to the criminal branch, which  reports it to the supreme  court and the minister of justice.  If the sentence be carried out in a town that is not the capital of a district, the practice is as above described, except with reference to the meeting of the audiencia; but report is made thereto by telegraph of the starting of the convict and  of the  execution, and the certificate is also forwarded to it." (Compilacion  Reformada de las Disposiciones Vigentes sobre el Enjuiciamiento Criminal, p.  256.)

^[2] The royal order of June 4,  1849, is here set out in full, because it clearly discloses that, as early as the year 1815, the civil courts asserted and exercised exclusive authority over the proceedings had in the execution of convicts sentenced to death  by those courts; and that they even went so  far as to set up an unsuccessful claim of a like authority, in cases of similar proceedings had in the  execution of convicts sentenced to an ignominious death by military commissions.

"1849. June 4. Royal order providing  that execution of the sentences wherein the penalty  of death on the garrote is imposed by the military authority be carried out by it, securing the public executioner from the audiencia.

"Excellency: The Minister of War has to-day advised the Minister of Justice as follows:

"I have reported to the Queen (God save the Queen) what your Excellency was  kind enough to  make known to me concerning the royal order of December 13 last with regard  to the conflict that arose between the  captain-general of Catalonia  and the audiencia of that territory, because the former insisted, on the strength  of  the royal order of June 30, 1815, that the audiencia itself should provide for the  execution of  the sentence of ignominious death on the garrote, imposed by the military commission of Barcelona upon eleven offenders tried for robbery and the kidnaping of five residents of the town of Sanz.  Having been thus informed, as likewise of the report in  this matter by the supreme council of war and  navy and in accordance with its  opinion, her Majesty has deigned to decide that, in order hereafter to avoid conflicts of this kind, it be established as a general rule, as this  ministry proposed, that whenever the military authority imposes the penalty of death on the garrote in cases falling within its jurisdiction,  the sentence shall be carried out by  it,  after  notice to the  audiencia of the territory, in order that the latter  may without delay place at its disposal the public executioner with the apparatus necessary for inflicting the penalty. By Royal Order, to  be communicated, etc. Madrid,  June 4, 1849 To the Governors  and Captains-General of the Islands of Cuba,  Porto Rico, and the  Philippines."


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