57 Me. 55 | Me. | 1869
The question presented by the case before us is, whether the sentence to three years’ imprisonment in the State prison was'legally imposed. It is not objected that such a sentence was beyond the limit fixed for the crime, but it is urged that the court had no power to inflict it, because the same court had passed a prior sentence of six months’ imprisonment in the county jail on the same indictment, and had issued a warrant of commitment, which had been executed by the sheriff, by committing the prisoner to the jail, and he had been received by the jailer and entered on the register as such prisoner, and had remained as such for nineteen days of the six months, before he was recalled into court, and the second sentence imposed.
After conviction, if no legal bar is interposed, it is the duty of the court to award sentence, and after such sentence of imprisonment is pronounced and recorded on the docket, it is the duty of the court to issue a warrant to the sheriff or warden, directing him to take the convict into custody, and remove him to the designated place of confinement. When the court has done these acts it would seem to have done all that it had legal power to do, and its power over the prisoner or his destiny, under the proceedings then before it, would appear to be at an end.
If there had been any h’regularities or any illegal proceedings, the remedy would be by writ of error, or review, or by habeas corpus, or some other new proceeding.
It is clear that a judge cannot pass two sentences, to be in force at the same time. He cannot pass a sentence of imprisonment in the county jail for a specified time, and afterwards add to it a sentence of years in the State prison, to take -effect after the expiration of the first part of the sentence.
If there can be any validity in the second sentence, it must be because the first sentence is legally annulled or revoked and made entirely void.
Chief Justice Shaw, in Stickney v. Davis, 17 Pick. 169, says,— when speaking of a judgment in a civil ease, — “where it clearly appears that no action has been had on the judgment, or the execution, if one has been issued, has been returned to the files unexecuted, and where the rights of third persons cannot be affected, there seems to be no reason why the same thing (as an entry of a judgment nunc pro tunc) should not be done by vacating the entry of judgment, and bringing the action forward. This ought to be done _with great caution, and with strict regard to the rights of others.”
These cases certainly are as strong for the respondent as any that can be found, and recognize the right of the court to go as far, at least, as we can find either reason or authority for going. But they stop at the point of execution, and clearly express or imply that after execution or warrant issued and executed, this power of summarily changing the record, or judgment, or sentence, is at an end.
In this case the warrant had issued, had been executed, the pris
If these proceedings were legal, it would seem that this prisoner must suffer punishment under two distinct sentences for tbe same offence. If tbe judge could annul the first sentence as to its legality afterwards, be could not annul or restore tbe nmeteen days of imprisonment suffered under it. If now be is to be sent to tbe State prison for .three years more, not counting his time in jail under tbe first sentence, he certainly must suffer two distinct imprisonments under two distinct sentences, given at a considerable interval of túne, for tbe same offence, and under one indictment.
We think that tbe sentence in question to tbe State prison ivas illegally imposed, and is void and cannot be carried out. We think tbe first sentence was legal, and should be executed.