174 Mass. 369 | Mass. | 1899
The defendant in this case was the plaintiff in error in the case of Murphy v. Commonwealth, 172 Mass. 264. In
The contention of the defendant is in substance that one who has been sentenced by a court having jurisdiction of the offence, and of the person and the right to sentence to the place designated, and who has served a substantial portion of the time for which he was sentenced, cannot be resentenced if it turns out on a writ of error brought by him that the original sentence was unlawful. He contends in his own case that the resentence constituted a second punishment for the same offence, that he has been twice put in jeopardy thereby, and has been deprived of his constitutional rights.
The statute under which the case was remanded contains no limitation on the power to remand for sentence in case of a reversal for error, but it is manifest that it cannot authorize the imposition of another sentence under such circumstances as would make it an interference with the constitutional rights
By jeopardy is meant, we think, lawful jeopardy from the commencement of the proceedings until their termination by a proper judgment and sentence, or acquittal, or what the law regards as such. It has been held in numerous cases that where, either for want of jurisdiction or from some defect in the indictment, or from some error in the course of the proceedings, the verdict has been set aside or the judgment has been arrested on a writ of error brought by the defendant, or on a motion made by him, and he has been tried again, he was not thereby put in jeopardy a second time, and his constitutional rights were not abridged. Commonwealth, v. Wheeler, 2 Mass. 172. Commonwealth v. Peters, 12 Met. 387. Commonwealth v. Roby, 12 Pick. 496, 502. Commonwealth v. Lahy, 8 Gray, 459. Commonwealth v. Gould, 12 Gray, 171. McKee v. People, 32 N. Y. 239. People v. M'Kay, 18 Johns. 212. State v. Walters, 16 La. An. 400. Jones v. State, 15 Ark. 261. Turner v. State, 40 Ala. 21. Gerard v. People, 4 Ill. 362. State v. Redman, 17 Iowa, 329. State v. Sutton, 4 Gill, 494. Cooley’s Const. Lim. (3d ed.) 327. Sedgwick on Stat. & Const. Law, (2d ed.) 572, 573, n. (a). One ground on which such a conclusion has been reached is, that by bringing the writ of error or making the motion he is deemed to have waived any constitutional objection that he might have had to another trial or to the entry of a proper judgment. 1 Bish. Crim. Law, (2d ed.) §§ 672 et seq. If a second trial where the verdict has been set aside or the judgment arrested does not constitute legal jeopardy, it is difficult to see how the fact that a party may have served a portion of the sentence that has been set aside for error on proceedings instituted by him can rightfully object to the imposition of another and a lawful sentence by the court to which the case has been remanded. In this case the trial and conviction were, for aught that appears, regular and legal in all respects. The only error was in the sentence. It would be strange if there was no power anywhere to correct or to authorize the correction of the error on proceedings instituted by the prisoner except at the risk of delivering him from any further
Though the sentence in this case was in excess of the jurisdiction, it was not void, but voidable, (Sennott's case, 146 Mass. 489; Ex parte Lange, 18 Wall. 163, 174,) and if the defendant had completed the term for which he was sentenced, he would have paid the penalty required and could not have been imprisoned or punished again for the same offence. Commonwealth v. Loud, 3 Met. 328. To that extent the sentence was lawful until reversed. Sennott’s case, ubi supra. Regina v. Drury, 3 C. & K. 193. Except for the statute authorizing the case to be remanded, he would have been entitled to a discharge, not because to resentence him was unconstitutional, but because at common law the court from which the writ of error issued could not itself pronounce the proper judgment or sentence or send back the case to the inferior court to do so. Shepherd v. Commonwealth, 2 Met. 419. The King v. Bourne, 7 A. & E. 58. The King v. Ellis, 5 B. & C. 395. But a judgment and sentence reversed are the same as if there had been no judgment and sentence, (Regina v. Drury, ubi supra,) and this must be so even if the prisoner has served a part of the sentence. Whether the confinement under the reversed sentence has been longer or shorter can on principle make no difference. Besides, the length of such confinement will depend somewhat at least on the promptness with which proceedings are instituted to secure a reversal. No doubt it would have been competent for the court to order that the last sentence should take effect from the date of the first sentence, (Jacquins v. Commonwealth, 9 Cush. 279,) but we do not think that it was bound to do so; and though the effect of the resen
We do not discover in what has been done anything by which the privileges or immunities of the defendant as a citizen of the United States have been abridged in violation of the Fourteenth Amendment. The equal protection of the laws has not been denied to him, and he has not been deprived of his liberty without due process of law. In re Converse, 137 U. S. 624. Moore v. Missouri, 159 U. S. 673.
The fact that the court in Murphy v. Commonwealth may have taken a somewhat different view of St. 1895, c. 504, from that taken in Commonwealth v. Brown, 167 Mass. 144, does not constitute an interference with the defendant’s rights.
Exceptions overruled.