§ 224 CRIMINAL LAW ing.11 Such proof must be considered by the jury in connection with all the other testimony and not independently thereof, and the guilt or innocence of the defendant determined from all the testimony.12 In determining the weight to be given to testimony as to character, the jury should consider the nature of the offense with which the defendant is charged. If he is indicted for larceny, forgery, or other offense of a kind which implies moral obliquity, proof that he is a man of high character and unquestioned integrity may of itself raise a doubt whether a man of that character can be guilty of such an offense; but not so if the charge, for example, is for an assault and battery, for men of the highest integrity may be men of violent passions and have ungovernable tempers.18 XIII. ARREST OF JUDGMENT 224. Nature, Scope and Grounds.-A motion in arrest of judg ment is an application to the trial court made after a verdict of guilty or a plea of guilty to prevent the entry of judgment, and it will lie only when it appears on the face of the record that no judgment can be legally entered, 14 except in the case of a pardon which may be shown in arrest of judgment.15 Where the sufficiency of an indictment or information is first challenged in this way, the sufficiency of the allegations will be construed with less strictness than when raised Notes: 20 L.R.A. 617; Ann. Cas. 1913E 19, 23. 13. State v. Brown, 39 Utah 140, 115 Pac. 994, Ann. Cas. 1913E 1. 11. Daniels v. State, 2 Penn. (Del.) 11 So. 250, 38 A. S. R. 85; Scott v. 586, 48 Atl. 196, 54 L.R.A. 286; Wag- State, 105 Ala. 57, 16 So. 925, 53 A. ner v. State, 107 Ind. 71, 7 N. E. 896, S. R. 100; State v. McGuire, 84 Conn. 57 Am. Rep. 79; State v. Northrup, 470, 80 Atl. 761, 38 L.R.A.(N.S.) 48 Ia. 583, 30 Am. Rep. 408; Allen v. 1045; Wagner v. State, 107 Ind. 71, Com., 134 Ky. 110, 119 S. W. 795, 20 7 N. E. 896, 57 Am. Rep. 79. Ann. Cas. 884; Latimer v. State, 55 Neb. 609, 76 N. W. 207, 70 A. S. R. 403; People v. Van Gaasbeck, 189 N. Y. 408, 82 N. E. 718, 12 Ann. Cas. 745, 22 L.R.A.(N.S.) 650; People v. Gilbert, 199 N. Y. 10, 92 N. E. 85, 20 Ann. Cas. 769; Com. v. Cleary, 135 Pa. St. 64, 19 Atl. 1017, 8 L.R.A. 301; Com. v. Harmon, 199 Pa. St. 521, 49 Atl. 217, 85 A. S. R. 799; State v. Brown, 39 Utah 140, 115 Pac. 994, Ann. Cas. 1913E 1; State v. Moyer, 58 W. Va. 146, 52 S. E. 30, 6 Ann. Cas. 344. Notes: 20 L.R.A. 617; 11 Ann. Cas. 1190. 14. Demolli v. United States, 144 Fed. 363, 75 C. C. A. 365, 7 Ann. Cas. 121, 6 L.R.A. (N.S.) 424; State v. Carver, 49 Me. 588, 77 Am. Dec. 275 and note; State v. Eaves, 103 N. C. 752, 11 S. E. 370, 8 L.R.A. 259; L.R.A. State v. Kent, 5 N. D. 516, 67 N. W. 518; Delaware 1052, 35 Division Canal Co. v. Com., 60 Pa. St. 367, 100 Am. Dec. 570. 15. Delaware Division Canal Co. v. Com., 60 Pa. St. 367, 100 Am. Dec. 12. Springfield v. State, 96 Ala. 81. 570. by demurrer. A judgment should not be arrested for matters not affecting the real merits of the prosecution,17 or for matters that are cured by the verdict, 18 or for anything that could have been pleaded in abatement.19 Accordingly a defect in an indictment that appears only by the aid of testimony cannot be made the subject of such a motion.20 But a judgment of conviction should be arrested if based on an indictment materially different from that found by the grand jury. Therefore where an indictment has undergone serious changes and alterations, and would not afford the basis of a conviction, though it may have been a good and sufficient indictment before the alteration, judgment should be arrested. Where it is provided by statute that a judgment in a criminal case shall only be arrested on certain specified grounds the statute is exclusive and judgment cannot be arrested on any grounds not specified therein. Thus where a statute provides that the only ground on which a judgment shall be arrested is that the facts stated in the indictment do not constitute a public offense within the jurisdiction of the court, it will not be arrested on the ground that at the time of the trial there was pending and undisposed of a former indictment in which the defendant was charged with the identical offense. 225. When Motion Should Be Made; Effect of Arresting Judgment.-A motion to arrest a judgment should regularly be made before the time for sentence, but the defendant is permitted to make it at the time when he is asked if he has anything to say why the judgment of the law should not be pronounced against him, and if his objections are valid, the whole proceedings should be set aside. The allowance of the motion does not operate as an acquittal, but only places the defendant in the same situation in which he was before the prosecution was begun. 16. State v. Wright, 20 N. D. 216, 126 N. W. 1023, Ann. Cas. 1912C 795. 17. Teal v. State, 22 Ga. 75, 68 Am. Dec. 482; Conner v. State, 25 Ga. 515, 71 Am. Dec. 184; Horne v. State, 37 Ga. 80, 92 Am. Dec. 49. 18. State v. Hogg, 126 La. 1053, 53 So. 225, 21 Ann. Cas. 124, 29 L.R.A. (N.S.) 830; State v. Carver, 49 Me. 588, 77 Am. Dec. 275. 19. State v. Carver, 49 Me. 588, 77 Am. Dec. 275; State v. Stewart, 7 W. Va. 731, 23 Am. Rep. 623. As to pleas in abatement, see supra, par. 79– 81. 20. State v. Washington, 104 La. 443, 29 So. 55, 81 A. S. R. 141; State v. Carver, 49 Me. 588, 77 Am. Dec. 275; State v. Tully, 31 Mont. 365, 78 Pac. 760, 3 Ann. Cas. 824. 1. Duty v. State, 54 Tex. Crim. 613, 114 S. W. 817, 22 L.R.A. (N.S.) 469. 2. Clampitt v. United States, 6 Indian Ter. 92, 89 S. W. 666, 10 Ann. Cas. 1087; State v. Tully, 31 Mont. 365, 78 Pac. 760, 3 Ann. Cas. 824. 3. Clampitt v. United States, 6 Indian Ter. 92, 89 S. W. 666, 10 Ann. Cas. 1087. 4. Gannon v. People, 127 Ill. 507, 21 N. E. 525, 11 A. S. R. 147; Jones v. State, 51 Miss. 718, 24 Am. Rep. 658. 5. State v. Wilson, 50 Ind. 487, 19 Am. Rep. 719. 6. State v. Stephenson, 69 Kan. 405, 76 Pac. 905, 105 A. S. R. 171, 2 Ann. Cas. 841. XIV. JUDGMENT AND SENTENCE In General 226. Contents of Judgment Generally; Conformity to Statute.— It is not difficult to state just what a judgment in a criminal action ought to contain, although it may be a matter of much perplexity to apply the rules stated. In a general way the judgment ought to show that all the acts required by the statutes which regulate proceedings in criminal cases to be done at that stage of the case were performed. Thus it is essential to the validity of the record of a criminal case that it show that the proceedings were had in a court regularly organized, and therefore the convening order for the term at which the conviction was had should appear. The record should also show that the grand jury was sworn; that the indictment was returned into open court; that defendant entered a plea to the indictment; and that the trial jury was impaneled and sworn. In cases where it is not lawful for the court to proceed to judgment in the absence of the defendant, as in felonies, it ought to show that the defendant was present in person; that he was informed by the court or by the clerk under its direction of the nature of the indictment, of his plea, and if he pleaded not guilty, of the nature of the verdict; and that he was asked whether he had any legal cause to show why judgment should not be pronounced against him; if cause is shown, the entry should show what it was, and what disposition was made of it by the court; and lastly, the punishment or sentence imposed by the court, which should be stated with sufficient certainty to enable the officer to execute it. But while all this ought regularly and properly to appear in the entry of judgment, it does not follow that the omission of some or any part of it will render the judgment erroneous, much less void. It is the general rule that a judgment rendered by a court in a criminal case must conform strictly to the statute, and that any variation from its provisions, either in the character or the extent of punishment inflicted, renders the judg ment absolutely void. Accordingly in cases where the statute makes hard labor a part of the punishment, it is imperative on the court to include that in its sentence.10 And where a statute creates an offense, and prescribes a special form of punishment, this will exclude any other different or additional punishment.11 Thus where a statute 7. People v. Gray, 261 Ill. 140, 103 N. E. 552, 49 L.R.A. (N.S.) 1215 and note. 8. Ex parte Gibson, 31 Cal. 619, 91 Am. Dec. 546. 9. Weems v. United States, 217 U. S. 349, 30 S. Ct. 544, 54 U. S. (L. ed.) 793, 19 Ann. Cas. 705; Ex parte Gibson, 31 Cal. 619, 91 Am. Dec. 546. 10. Weems v. United States, 217 U. S. 349, 30 S. Ct. 544, 54 U. S. (L. ed.) 793, 19 Ann. Cas. 705. 11. Weems v. United States, 217 U. S. 349, 30 S. Ct. 544, 54 U. S. (L. ed.) 793, 19 Ann. Cas. 705; Pressly v. State, 114 Tenn. 534, 86 S. W. 378, 108 A. S. R. 921, 69 L.R.A. 291. does not impose imprisonment, but declares merely that the punishment shall be a fine, a sentence of imprisonment cannot be imposed.12 227. Specification of Offense; Adjudication of Guilt.-It is not generally considered necessary that the sentence or judgment in a criminal case specify distinctly the offense of which the defendant has been convicted, if the other parts of the record are clear in this respect,13 though it has been laid down as a rule that a judgment of conviction must state the offense for which the punishment is inflicted.14 While the better practice is to state in a judgment that the defendant is guilty of the crime with which he is charged, the failure expressly to adjudge the defendant's guilt does not necessarily vitiate the judgment, as the infliction of the punishment sufficiently implies the judgment of guilt.15 Where a verdict determines the character of the crime and the penalty, the sentence on the verdict is an adjudication by the court and is sufficient as a judgment.16 228. When Sentence Should Be Imposed.-It is the ordinary practice, usually secured by statute, to allow a defendant some time after judgment before sentence is imposed. And where a specified time is required to elapse after verdict and before sentence, sentence cannot be imposed until after the lapse of such period. But where a statute prescribes that a certain period must elapse if the court intends to remain in session so long, and if not that the time shall be as remote as can be reasonably allowed, the defendant is not entitled to the specified time absolutely, but only if the court is to remain in session for that length of time; and where it is shown that a sentence was passed before the expiration of the specified period the appellate court will presume that the trial court did not remain in session after the day the sentence was pronounced, or at least will not presume that a substantial right of the defendant was denied.17 229. Fixing Time for Execution of Judgment.-The judgment, though pronounced by the judge, is not his determination, but that of the law, which depends not on the arbitrary opinion of the judge, but on settled and irreversible principles of justice.18 Therefore the time fixed for executing a judgment or for the commencement of its execution is not one of its essential elements, and, strictly speaking, is not a part of it. The essential part of the judgment is the punishment, and the amount thereof, without reference to the time when it 12. Pressly v. State, 114 Tenn. 534, 86 S. W. 378, 108 A. S. R. 921, 69 L.R.A. 291. 13. Demolli v. United States, 144 Fed. 363, 75 C. C. A. 365, 7 Ann. Cas. 121, 6 L.R.A.(N.S.) 424. 14. Ex parte Dela, 25 Nev. 346, 60 Pac. 217, 83 A. S. R. 603. 15. Ex parte Robeison, 123 Ala. 103, 26 So. 645, 82 A. S. R. 107; Johnson v. State, 172 Ala. 424, 55 So. 226, Ann. Cas. 1913E 296. 16. Hoch v. People, 219 Ill. 265, 76 N. E. 356, 109 A. S. R. 327. 17. State v. Lu Sing, 34 Mont. 31, 85 Pac. 521, 9 Ann. Cas. 344. 18. Ex parte Duckett, 15 S. C. 210, 40 Am. Rep. 694. shall be executed. Except in cases where the defendant has been convicted of two or more offenses before judgment on either, the order of the court in reference to the time when the sentence shall be executed is not material; 19 hence, if from any cause it is not carried into effect at the period named, the defendant may be brought before the court again on motion, and a new period prescribed.20 Likewise, on the lapse of the day fixed for the execution of a sentence of death, without the sentence being carried into effect, a new day must be fixed for the execution.21 The fixing of such a date is a ministerial duty, and there is no constitutional objection to a statute imposing the duty on the governor or the appellate court.22 230. Effect of Failure to Fix Time for Commencement of Sentence. A sentence which does not specify any time for the imprisonment to commence is not void. The better practice 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.1 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. This rule if strictly interpreted would relieve a defendant from punishment entirely in some instances where the term of imprisonment is fixed for a very short period of time, as for one hour in the penitentiary. In such a In such a case the fact of actually being imprisoned in a penitentiary is the gist of the punishment and not the period of confinement, and therefore the rule is not applied in such cases. If the defendant is not in custody when sentence is pronounced the term of imprisonment will not commence until he is actually committed in execution of the sentence.* 19. Ex parte Gibson, 31 Cal. 619, 91 Am. Dec. 546; Terrell v. Wiggins, 55 Fla. 596, 46 So. 727, 127 A. S. R. 196; Bullitt v. Sturgeon, 127 Ky. 332, 105 S. W. 468, 14 L.R.A. (N.S.) 268 and note; Ex parte Eldridge, 3 Okla. Crim. 499, 106 Pac. 980, 139 A. S. R. 967 and note, 27 L.R.A. (N.S.) 625; Ex parte Duckett, 15 S. C. 210, 40 Am. Rep. 694. 20. Miller v. Evans, 115 Ia. 101, 88 N. W. 198, 91 A. S. R. 143, 56 L.R.A. 101; Ex parte Eldridge, 3 Okla. Crim. 499, 106 Pac. 980, 139 A. S. R. 967 and note, 27 L.R.A. (N.S.) 625. 21. Armstrong v. State, 2 Okla. Crim. 567, 103 Pac. 658, 24 L.R.A. (N.S.) 776; State v. Kitchens, 2 Hill L. (S. C.) 612, 27 Am. Dec. 410. 22. Bullitt v. Sturgeon, 127 Ky. 322, 105 S. W. 468, 14 L.R.A.(N.S.) 268. As to the separation of the powers of government, see CONSTITUTIONAL LAW, vol. 6, p. 144 et seq. Pac. 484, 83 A. S. R. 568. 2. Ex parte Gafford, 25 Nev. 101, 57 Pac. 484, 83 A. S. R. 568; Ex parte Clendenning, 22 Okla. 108, 97 Pac. 650, 132 A. S. R. 628, 19 L.R.A. (N.S.) 1041. 3. Sartain v. State, 10 Tex. App. 651, 38 Am. Rep. 649. 4. In re Breton, 93 Me. 39, 44 Atl. 125, 74 A. S. R. 335. |