241 P. 616 | Mont. | 1925
When the defendant is called for arraignment for judgment and at the time judgment is rendered, among other things, the court must apprise him that the following things happened, and the same should be recited in the judgment, to-wit: That an information was filed, and whether by leave of court or after hearing, as well as the nature of the charge against him; that he was tried at a regular or special term of court duly convened; that the jury was impaneled and sworn. (Sec. 12064, Rev. Codes 1921;People v. Gray,
Separate offenses charged in one information, when committed at the same time and parts of one continuous criminal act, inspired by the same criminal intent, are susceptible of but one punishment. (8 R.C.L. 233; Munson v. McClaughrey, 198 Fed. 72, 42 L.R.A. (n.s.) 302, 117 C.C.A. 180; Stevens v.McClaughrey, 207 Fed. 18, 51 L.R.A. (n.s.) 390, 125 C.C.A. 102.) And a judgment imposing separate punishments, running consecutively, is erroneous and void. (Parker v. People,
Substantial compliance with statute relating to arraignment for judgment is sufficient. (Lee v. State (Ariz.),
The court had full power to do just what it did, in imposing a jail sentence and a fine, and compelling defendants to serve in jail one day for each two dollars of the fine, if the fine be not paid. Where an indictment charges two distinct offenses and the defendant pleads guilty or is convicted of both offenses, he may be punished for both, though in such a case the court ought not to pass a general sentence, but should separately assess the punishment for the two offenses. (8 R.C.L., sec. 231.) A sentence which does not specify any time for the imprisonment to commence is not void. The better practice *33
is not to fix the commencement of the term, but merely to state its duration and the place of confinement, where the statute does not otherwise provide. And the general rule, supported by practically all of the authorities, is that, where not controlled by statute, the date for the beginning of the service of the term of imprisonment, if not fixed in the sentence, will commence to run, when not legally stayed, on the day of sentence. (Id., sec. 230; Ex parte Gibson,
The record does not contain any of the evidence adduced at the trial. The court instructed the jury that the defendants were charged jointly with two separate offenses against the laws of this state relating to intoxicating liquors, and said that if the evidence warranted they might find the defendants or either of them guilty upon both counts or not guilty upon either or both.
It is urged by counsel for appellant that no judgment was made or entered. They say that "instead of a judgment we find simply a minute entry by the clerk that the court did certain things." As we have seen, when the jury returned its verdicts, the court fixed a time for pronouncing judgment in accordance therewith pursuant to the requirements of the statute. (Sec. 12055, Rev. Codes 1921.) The defendants did not care to await the time fixed by the court but, on the next day after the verdicts were returned, waived time and asked that sentence be pronounced at once. The assertion that the record does not show that court was then in session is denied *35 by the record. When appellant appeared for sentence, the court proceeded scrupulously as directed by section 12064, Revised Codes of 1921, and when he announced that he did not have any cause to show why judgment should not be pronounced against him, the court thereupon rendered it in accordance with section 12066. When the judgment was rendered the clerk entered the same in the minutes, and so far as we are advised, made up the judgment-roll as prescribed in section 12074, Revised Codes of 1921; the copy of the judgment referred to in that section is a copy of that which the clerk is required to enter in the minutes. From an inspection of the record it seems to us that the method pursued by the court in passing sentence and rendering judgment in this case was faultless. (8 R.C.L. 231.)
But it is insisted that the judgment is erroneous because "it[2] carries separate punishments for separate charges in the information based on the same criminal act." But here, as inState v. Marchindo,
Nor is there merit in appellant's contention that the judgment[3] is void for uncertainty for the reason that the order in which the cumulative sentences are to be served cannot be determined therefrom. The court separately assessed the punishment for the two offenses as was proper. (8 R.C.L. 233.) In all cases where a person has been convicted of two or more crimes before sentence has been pronounced upon him for either, the court with propriety may specify in its judgment that the imprisonment to which he is sentenced upon the second or other subsequent conviction must commence at the *36 termination of the first term of imprisonment to which he shall be adjudged, in accordance with the provisions of section 11596, Revised Codes of 1921. The practice is commended. But in the instant case, in view of the very specific provisions of the judgment, that course was not necessary.
The requirements of this judgment are plain enough; the sheriff receiving a certified copy thereof (sec. 12087, Rev. Codes 1921) would not be in doubt as to how to execute it; his duty would be to imprison the appellant for definite cumulative terms, and in default of the payment of the fines continue appellant's confinement "for the period of one day for each $2 of said fine remaining unpaid." (Mr. Justice Galen, in Ex partePyle,
The judgment is affirmed.
Affirmed.
ASSOCIATE JUSTICES HOLLOWAY, GALEN, STARK and MATTHEWS concur.
