84 Mass. 144 | Mass. | 1861
We are not called upon, in the present case, to express any opinion concerning the wisdom or expediency of the course adopted by the court below, in revising and changing a sentence which had been formally promulgated and pronounced on a convict. The presumption is that there were sufficient reasons, addressing themselves to the sound judicial discretion of the court, for such action, and that it was deemed to be necessary in furtherance of justice and the due administration of the law. The single question which we have to determine is, whether, upon the record as certified to us, there is any
It seems to have been recognized as one of the earliest doctrines of the common law, that the record of a court may be changed or amended at any time during the same term of the court in which a judgment is rendered. It is said by Lord Coke, in Co. Litt. 260 a: “ Yet during the term wherein any judicial act isl done, the record remaineth in the breast of the judges of the court, and in then- remembrance, and therefore the roll is alterable during that term, as the judges shall direct; but when that term is past, then the record is in the roll, and admitteth of no alteration, averment or proof to the contrary.” This statement of the rule of law is substantially followed by subsequent text writers of high authority. Com. Dig. Record, F. Bac. Ab. Sessions of Justices. 2 Gabbett’s Crim. Law, 564. In 1 Chit. Crim. Law, 722, it is stated thus: “ In case of misdemeanors, it is clear the court may vacate the judgment before it becomes matter of record, and may mitigate, or pass another, even where the latter is more severe; and the justices at sessions have the same power during the session, because it is regarded as only one day.” That this power has been often exercised by the courts in England, is manifest from cases in which it appears that judgments and sentences, during the same term in which they have been entered, have been vacated, and others substituted, without doubt or question. Regina v. Fitzgerald, 1 Salk. 401. Turner v. Barnaby, 2 Ib. 567. The King v. Price, 6 East, 327. The King v. Justices of Leicestershire, 1 M. & S. 444. Darling v. Gurney, 2 Dowl. Pr. Cas. 101. The authority thus exercised is probably founded on the practice by which the record is not finally made up until the end of the term or session of the court, when “ the roll,” as it is called, is signed and returned. Until then, it remains in the control of the court, and no entry therein is deemed to be final, or beyond the power of the court to amend or alter it, either for error or other sufficient cause. The practice in thi?
Prisoner remanded.