else by that name in this country, or that the defendant was in any manner prejudiced or misled concerning the identity of the individual upon whom it was claimed he had made the assault. It is further claimed that the court erred in receiving in evidence the jaw bone of the decedent which was fractured by a bullet. This was competent to corroborate the evidence tending to show that the defendant fired at the decedent's chin and to identify Chin Yen, whose jaw bone it was, as the individual upon whom the assault was committed. It is further urged that the conviction should be reversed because the district attorney was permitted to ask leading questions with respect to the shooting. The trial court is vested with a reasonable degree of discretion to permit leading questions to be asked, and we are of opinion that this discretion was not abused. The appellant also complains that his counsel was not allowed to show what disposition was made of the charges made against certain other individuals arrested at the same time. It is claimed that this was competent as tending to impeach the testimony of the police officers upon the ground that they made unwarranted arrests and did not know who were guilty. The disposition of a criminal charge by the court or grand jury, in the absence of some admission by the officer who made the arrest, would not be competent as tending to impeach his testimony in respect to a commission of the crime by the party arrested by him. A transcript of the minutes of the stenographer to the coroner showed that the officer who claimed to have arrested the defendant for this crime testified that he arrested one Louie Lay therefor, but it appeared by the stenographer's original notes that the answer of the police officer was that he arrested Louie Way, this defendant. In some instances in the stenographer's original notes the name Lay appeared. The appellant contends that the court erred in excluding a question propounded to the . stenographer to the coroner, as to whether a question asked of the policeman and shown by a transcript of his minutes to be "Do you know where Louie Lay lives," was Way or Lay in his original notes. It is manifest that this would not have tended to contradict the policeman and no error was committed in excluding it. The guilt of the defendant was quite satisfactorily shown and we find no reversible error. It follows that the judgment should be affirmed. PATTERSON, P. J., INGRAHAM and CLARKE, JJ., concurred. Judgment and orders affirmed. GENERAL SESSIONS-NEW YORK. May, 1907. THE PEOPLE v. DANIEL SULLIVAN. (54 Misc. 489.) JURISDICTION-TRIAL-SENTENCE. The court in a criminal action is without power to revoke a sentence lawfully imposed and partly executed by the commencement of defendant's imprisonment thereunder for the purpose of imposing a heavier sentence. MOTION to set aside a judgment of conviction. The opinion states the case. William Travers Jerome, District Attorney, for motion.. Carl Fischer-Hansen, opposed. CRAIN, J. This is a motion that a judgment rendered against Daniel Sullivan by this court on the 19th day of April, 1907, by which judgment the said Daniel Sullivan was sentenced to imprisonment in the penitentiary of the county of New York for a term of two months, be vacated and set aside, and that a judgment and sentence be imposed upon the said Daniel Sullivan of a different character and for a longer term, in the light of the record of said Daniel Sullivan, as disclosed in the affidavits upon which the motion was made. A preliminary objection to the consideration of this motion on the merits is taken in behalf of the defendant, based on the contention that this court, after the pronouncement of sentence of imprisonment, is without power to revoke the sentence for the purpose of imposing a heavier one, where the sentence is itself lawful and has been, in part, executed by the commencement thereunder of the imprisonment of the defendant. I am re ferred to a number of cases in other States in which the question involved in this contention is discussed, and in some of which such power in the court is denied. I am referred to no case directly in point in this State; and, in the short time which has been at my disposal, I have been unable to find any. The objection to the exercise of such power by the court is that, could it be exercised, a defendant, in violation of his constitutional rights, might be punished twice for the same offense-first, by undergoing imprisonment under the first sentence, and then by undergoing imprisonment under the second. This is the view taken by the Supreme Court of the United States in the case of Ex parte Lange, 18 Wall. 163. In the case of Gresham v. State, 19 Tex. 504, the court says on this point, at page 515: “But in criminal cases the power of courts over their judgments during the term at which they are rendered does not extend to cases where punishment has already been inflicted in whole or in part (Ex parte Lange, 18 Wall. [U. S.] 163): A conviction followed by an endurance of punishment will bar further prosecution for the same offense.' (Wharton Crim. Prac. & Pl., 8th ed., sec. 460, citing Comm v. Loud, 3 Met. 328; Comm. v. Keith, 8 Met. 531; Fritz v. The State, 40 Ind. 18.) "In the judgment of conviction rendered in the county court and which was read as evidence by the defendant in support of his plea of former conviction, it is recited and ordered that he be remanded to the custody of the sheriff of Hunt County till such fine and costs are fully paid.' It was as stated a day or two after the rendition of this judgment that the Court of its own motion set it aside. It is but fair and reasonable to presume that in the interim between its rendition and attempted annulment and vacation the defendant had, according to its terms, either paid the fine and costs imposed or been held in custody by the sheriff in default of such payment. If so, in either event he had suffered some punishment under said judg ment, and it was then beyond the power of the Court either to set it aside, vacate, annul or change it in any substantial respect, unless at the instance or on motion of the defendant." See to the same effect Brown v. Rice, 57 Maine, 55; 2 Am. Rep. 1, where the question is discussed at considerable length by Judge Kent; also State v. Davis, 31 La. Ann. 249; People v. Meservey, 76 Mich. 223, and People v. Kelly, 79 id. 320. On these and other cases, I am inclined to the view that this preliminary objection is well taken and sustained by authority. This view constrains me to deny the present motion. Motion denied. NOTE:-POWER OF COURT TO REVISE SENTENCE. DURING TERM. The general doctrine gleaned from the authorities is that the court may change or amend the sentence, either in form or substance, at the same term of court at which the defendant was convicted, and before execution of any part of the sentence; but after the expiration of the term of court, the judgment in fact pronounced by the court cannot be altered. Ex parte Casey, 18 Fed. 86; United States v. Harminson, 3 Sawy. 556; Jobe v. State, 28 Ga. 235; State v. Daughery, 70 Iowa, 439; State v. Hughes, 35 Kan., 626; Matter of Black, 52 Kan. 64; Com. v. Weymouth, 2 Allen (Mass.) 144; State v. Warren, 92 N. C. 825; Matter of Brittain, 93 N. C. 587; Lee v. State, 32 Ohio St. 113; Collins v. State, 39 Tex. Crim. Rep. 30; Ex parte Cox, 29 Tex. Crim. Rep. 84; Price v. Com. 33 Gratt. 819; State v. Davis, 31 La. Ann. 249. "It seems to have been recognized as one of the earliest doctrines of the common law," said the court in Com. v. Weymouth, 2 Allen, (84 Mass.) 144, "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 is done, the record remaineth in the breast of the judges of the court, and in their 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. Rec |