Lead Opinion
In the opinion heretofore rendered in this case, the court considered the questioned rulings of the trial court in the proceedings which led to the
We are cited to rulings to the effect that, when a defendant in a criminal case has paid his fine or his imprisonment has begun, the court has no power to recall him to revoke his former sentence and impose one which inflicts a greater punishment. — 12 Gyc. 783, 784, and authorities there cited. In the cases cited, the sentence first imposed was one which the court had the power to impose. In such a case it has been deemed that to permit the imposition of another sentence after the one first imposed had been wholly or partially executed would be in contravention of the rule against any one’s being twice lawfully punished for the same offense.— Ex parte Lange, 18 Wall. 163, 21 L. Ed. 872; State v. Meyer, 86 Kan. 793, 122 Pac. 101, 40 L. R. A. (N. S.) 90, 94, Ann. Cas. 1913C, 278. The reason which supports this prohibition of a second sentence cannot apply when the first sentence was a void one, or, in the eye of the law, no sentence at all.- The sentence first imposed cannot be treated as valid, for the purpose of preventing the imposition of another one, and at the same time as void for the purpose of enabling the defendant to obtain a discharge from any restraint under it. We do not find that anything has occurred which is entitled to be given the effect of disabling this court to render such judgment as the facts disclosed by the record call for.
As it has been found, as was stated in the opinion heretofore rendered, that no error was committed which would warrant a reversal of the judgment of conviction, and as the error above pointed out affects the judgment appealed from only so far as concerns its imposi
Affirmed in part, reversed in part, and remanded.
Rehearing
ON APPLICATION POE EEHEAEING.
In the brief filed in support of the appellant's application for a rehearing as to the reversal of the part of the judgment of the trial court Avhich imposed a sentence of imprisonment in the penitentiary and the remandment of the cause for the imposition of a sentence authorized by Ieav, it is urgently contended that the ruling made in the case of Ex parte Lange, 18 Wall. 163, 21 L. Ed. 872, and the opinion rendered in support of that ruling, demonstrate the incorrectness of conclusions stated by us in disposing of the feature of the case just mentioned. We think that the opinion rendered in the recent case of Ex parte Spencer, 228 U. S. 652, 33 Sup. Ct. 709, 57 L. Ed. 1010, furnishes a. sufficient an-SAver to this contention. What Avas said in that opinion shows that the facts in the case of Ex parte Lange were materially different from those in the case at bar, and that such a ruling as Avas made in that case would not be a proper one in a case situated as the one at bar was when the judgment of reversal was rendered. The case of Ex parte Lange was there recognized as one of a subsequent sentence being unauthorized because there Avas a legal part of the former sentence which had already been satisfied, the court saying of that case: “In that case a circuit court of the United States imposed a sen
Application for rehearing overruled.