Miller v. Finkle

| N.Y. Sup. Ct. | Feb 15, 1853

By the Court,

Parker, J. —

It was provided by the statute of 1836 (Laws of 1836, page 230, §6), that in cases where convicts shall be sentenced to be imprisoned in the state prison for a longer period than two years, “ the court before whom the conviction shall be had shall so limit the time of sentence, that it will expire between the month of March and the month of November, unless the exact period of the sentence may be fixed by law.” The sentence pronounced against Calvin and Peter Finkle was not in accordance with this requirement. It was a sentence for two years and six months, and under it, the imprisonment would have terminated in December. The defendant’s counsel argues that the sentence was therefore void. But that position is not tenable. The statute is merely directory. There was no want of jurisdiction. The time for which they were sentenced was within the limit prescribed by the act for the punishment of the offence. The sentence of the 18th June, therefore, notwithstanding the neglect to comply with the requirement of the act of 1836, was binding and operative, unless it was rendered otherwise by the subsequent proceedings.

On the 19th day of June, the court having discovered the error, ordered the sentence, which, had been pronounced on the day preceding, to be expunged, and the order was entered accordingly. The court then proceeded to sentence the prisoners to an imprisonment of two years and four months, a certified copy of which last sentence was delivered to the sheriff, under which they were imprisoned in the state prison. This proceeding was in effect vacating the judgment first pronounced; and it is necessary to consider whether the court had power to do so and what was its legal effect upon the transaction in question.

The courts certainly have not the power to pardon. That is vested by the constitution exclusively in the governor. But courts have power over their own records and judgments, which may be exercised in certain cases and to a certain extent. This by no means infringes upon the power of pardon. The courts can not forgive or remit, or absolve from the consequences of a criminal judgment. But they may see that the judgment itself is in conformity to law. Thus, they may reverse on error, or review on certiorari. If, by inadvertence in pronouncing a sentence, a requirement of the statute has been overlooked, it may be corrected by the same tribunal, before further action is taken.

I think it a safe rule to lay down, that a court of criminal jurisdiction may vacate or modify a judgment at the same term at which it is pronounced, and before the sheriff has proceeded to execute it. c

In King v. Price et al. (6 East R. 322), the defendants had been convicted of perjury and sentenced to imprisonment for one month and transported heyond seas seven years. After-wards, at the same term, the court vacated the judgment (which Lord Ellenborough observed might be done at any time within the said term), and passed a different sentence, viz.: that each should pay £20, and be imprisoned in Newgate six months and be afterwards transported for six years. The correctness of such a practice was also recognized by the king’s bench in King v. Justices of Leicestershire (1 Maul. & Selw. 442), and have been acted on in other cases. (1 Chitty’s Cr. L. 772.)

I think the court therefore had the right to expunge or vacate the first sentence, and to pass a new sentence; that the first sentence became void and inoperative, and the second sentence a valid and binding judgment: as much so as if the first sentence had been reversed on error, and the second sentence had been pronounced after a conviction upon a second trial.

The next question to be considered is, what was the effect of the first Sentence upon the assignments to the defendant? At the time these assignments were executed, the first sentence was in full force. The statute provides (2 R. S. 701, § 19), that “ a sentence of imprisonment in the state prison for any term less than for life suspends all the civil rights of the person so sentenced, and forfeits all public offices and all private trusts, authority or power, during the term of such imprisonment.” This disqualification commences, as does the running of the time of the imprisonment, from the moment of passing sentence. If, therefore, the sentence had not been vacated, the assignments would have been void, the assignors being incompetent to execute such instruments.

But what was the effect of the vacating of the sentence? I think it was precisely the same as if the sentence had been reversed on writ of error. When a judgment is reversed, all proceedings and sales under and by virtue of it are void at common law (6 Cowen R. 297; 8 Paige, 143, 9 do. 635), and it has been deemed necessary to provide by statute (2 R. S 375, sec. 68), that in cases, where the title to real estate which shall have been sold under a judgment shall fail in consequence of such judgment having been vacated or reversed, the purchaser shall have his action against the party for whose benefit the real estate was sold to recover the amount paid on the purchase thereof with interest. This enactment was necessary for the protection of the purchaser, for the reason that the proceedings were void.

The vacating of the sentence rendered it inoperative from the time it was pronounced, so that it could not invalidate the assignments in question.

I think, therefore, the setoff was properly allowed, and that the judgment of the county court should be affirmed.

Judgment affirmed»