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,18 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 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.1 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. 1. Ex parte Gafford, 25 Nev. 101, 57 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. 231. Assessment of Separate Punishment for Each Offense Charged. -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. In order, however, that separate offenses charged in one indictment may carry separate punishments, they must rest on distinct criminal acts, and therefore, if they were committed at the same time and were parts of a continuous criminal act, and inspired by the same criminal intent which is an essential element of each offense, they are susceptible of but one punishment. And where a defendant is convicted on a count charging two crimes there can be only one penalty, because, in that event, the merciful and just construction in favor of the defendant must be, that as both offenses were charged in the same count, they should be deemed as "one continued act," for which but one penalty could be adjudged. 232. Effect of Parole Statutes; Necessity for Commitment.-The great weight of authority is that parole statutes do not change or alter the sentence of the court and do not confer judicial power on the prison authorities. The fact that a board of parole may lessen the term by a parole under the terms of the statute does not affect the constitutionality of the act. But, even if it did, a defendant is in no position to complain, because any act of the board in his behalf must necessarily lessen the maximum punishment provided by the statute.10 The provisions of these statutes become a part of the sentence as much as though they were written in the records of the court.11 It has been generally held that a defendant imprisoned, in the custody of a proper officer, under a conviction by a court of general jurisdiction, will not be released on habeas corpus, merely because of a defective commitment in the hands of such officer, when the judgment of conviction authorizes such imprisonment. This view is rested on the theory that, when a valid final judgment of imprisonment is rendered against a defendant, that judgment becomes the real authority for such imprisonment, and the commitment, which ordinarily is merely a certified copy of the judgment, is only evidence of such authority. Surely a certified copy of such a judgment is no higher evidence of 5. Com. v. Birdsall, 69 Pa. St. 482, 8 Am. Rep. 283. 6. State v. Kelley, 206 Mo. 685, 105 S. W. 606, 12 Ann. Cas. 681. 7. Munson v. McClaughry, 198 Fed. 72, 117 C. C. A. 180, 42 L.R.A. (N.S.) 302; Stevens v. McClaughry, 207 Fed. 18, 125 C. C. A. 102, 51 L.R.A. (N.S.) 390. Note: 31 L.R.A. (N.S.) 693. 8. Bell v. State, 48 Ala. 684, 17 Am. Rep. 40. As to the effect of charging two offenses in one count, see INDICTMENTS AND INFORMATIONS. 9. People v. Joyce, 246 Ill. 124, 92 N. E. 607, 20 Ann. Cas. 472. 10. State v. Duff, 144 Ia. 142, 122 N. W. 829, 138 A. S. R. 269, 24 L.R.A.(N.S.) 625. 11. People v. Joyce, 246 Ill. 124, 92 N. E. 607, 20 Ann. Cas. 472. an officer's authority to act thereunder than the judgment itself. The officer is no doubt entitled to a proper commitment in his possession for his own protection; but if he acts within the authority and duty imposed on him by the judgment, he will not be held to have acted unlawfully simply because of the failure to have the evidence of his authority in his possession in some particular form, especially when he is the executive officer of the court rendering the judgment.12 Under the peculiar wording of a statute the rule might well be otherwise. Accordingly where it is provided that a commitment to the state prison on a conviction and sentence for a felony shall consist of a certified copy of the judgment as entered in the minutes of the court, it is not merely defective but is wholly unauthorized if it consists only of a history of the proceedings against the defendant, and it is the duty of the court to release a person held in prison on void process of commitment, as far as that process is concerned. However if there is a valid judgment of imprisonment against the prisoner, of which a certified copy can be obtained, it is the duty of the court, when brought before it by habeas corpus, to retain the prisoner until a reasonable time allowed for the purpose of producing it has elapsed, and if produced, to remand him.13 Necessity for Defendant's Presence When Sentence Is Imposed 233. In General.-It is a rule of the common law that when even the slightest corporal punishment is to be inflicted, the defendant must be present in court when the sentence is pronounced, and this is a right which cannot be waived.14 In some jurisdictions statutes have been passed declaratory of this rule.15 The reasons usually given are, that the defendant may be identified by the court as the real party adjudged guilty; that he may have a chance to plead a pardon or move in arrest of judgment; that he may have an opportunity to say why judgment should not be given against him; and that the example of being brought up for the animadversion of the court and the open denunciation of punishment may tend to deter others from the commission of similar offenses.16 In prosecutions for misdemeanors punishable by fine only, the personal presence of the defendant is not indispensable, and sentence may be pronounced in his absence.17 The true reason why a fine may be imposed in the 12. State v. Hatfield, 66 Wash. 9, 118 Pac. 893, 38 L.R.A.(N.S.) 609 and note. 13. Ex parte Gibson, 31 Cal. 619, 91 Am. Dec. 546. 14. People v. Faber, 199 N. Y. 256, 92 N. E. 674, 20 Ann. Cas. 879; State v. Dolan, 58 W. Va. 263, 52 S. E. 181, 6 Ann. Cas. 450 and note. 15. Note: 6 Ann. Cas. 453. 17. Lynch v. Com., 88 Pa. St. 189, 32 Am. Rep. 445; Price v. Com., 33 Grat. (Va.) 819, 36 Am. Rep. 797. Note: 6 Ann. Cas. 453. absence of the defendant, and not a judgment that he be put in the pillory or prison, was, that there is a regular process to collect a fine, but none to take a man who is at large and put him in the pillory. As to whether the defendant must be present when sentence is pronounced directing the payment of a fine and committing him to jail until such fine shall be paid, the decisions are not in agreement. It has been held that, under such circumstances, sentence may be pronounced in his absence, on the ground that the imprisonment is no part of the punishment but merely a means of enforcing the collection of the fine imposed. The contrary rule, however, prevails in some jurisdictions.18 The common-law rule as to the defendant's presence applies only to the sentence of the trial court, and he need not be present in the appellate court, whose only function is to determine whether, in the transcript submitted to it, there appears any error of law to the prejudice of the accused.19 234. Entry and Correction of Formal Matters; Entry of Judgment Nunc Pro Tunc.-In practice sentence is pronounced orally, and when this has been done in the defendant's presence, he has been accorded the full measure of his right, and the court may afterward write out the sentence in his absence and in doing so may mitigate the punishment. Likewise, the defendant need not be present at the time the clerk is performing the ministerial act of entering up the judgment, or when an order is signed making a change in his place of confinement.20 If the clerk of the court neglects to enter the judgment at the time when it is pronounced in the presence of the defendant, the court may afterwards make an order, in the defendant's absence, that the judgment be entered as of the date of rendition; 1 but where a judgment is not entered during the term, the defendant must be present at the hearing of a motion at a subsequent term for judgment nunc pro tunc. Formalities in Passing Sentence 235. Allocution.-It was indispensably necessary at common law in capital cases that a defendant should be asked before sentence if he had anything to say why sentence of death should not be pronounced against him, and the rule has been applied to all felony cases whether capital or not. While such practice is usual and perhaps prudent 18. Note: 6 Ann. Cas. 453. 19. Bullitt v. Sturgeon, 127 Ky. 332, 105 S. W. 468, 14 L.R.A.(N.S.) 268. Note: 6 Ann. Cas. 452. 20. Note: 6 Ann. Cas. 452. 1. Gonzales v. State, 35 Tex. Crim. 339, 33 S. W. 363, 60 A. S. R. 51. Note: 6 Ann. Cas. 452. 2. Note: 6 Ann. Cas. 452. 3. Jones v. State, 51 Miss. 718, 24 Am. Rep. 658; People v. Faber, 199 N. Y. 256, 92 N. E. 674, 20 Ann. Cas. 879; McCue v. Com., 78 Pa. St. 185, 21 Am. Rep. 7; State v. Trezevant, 20 S. C. 363, 47 Am. Rep. 840. Note: 36 Am. Rep. 97. 4. State v. Wilson, 50 Ind. 487, 19 Am. Rep. 719. |