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Mexico on Mexican roads, and that these men told him they had given up their jobs in Mexico and were then returning to the United States, and that they had bought the cigars in Mexico for their own use; that when he took such cigars to the restaurant he instructed Graham and James not to sell them to anybody; that they were for his own use, and were put away under the counter, and that he did not have the cigars on hand for sale; and that he did not sell the two cigars to the witness West, and never sold any broken boxes of cigars to the witness for the government, or any one else. Charles James testified that he was a partner of the defendant in the restaurant, and that the defendant brought the broken boxes of cigars to the restaurant; that he sometimes brought them in a satchel, and sometimes in his hands; that he instructed witness not to sell the cigars to any one; that the box containing the cigars found in his trunk in the private room by the revenue officer was brought there by the defendant, and by witness placed in his trunk; that these boxes of cigars found by the revenue officer had been there for some weeks; that he never sold any cigars to the witness West; and that he and his partner Graham were the only parties who ran the restaurant, but the defendant was a partner with them. John Graham testified that he was one of the partners of the defendant and James in the restaurant, and that he and James had sole charge of its business; that the defendant was not about the restaurant except when there taking his meals, when he would come in from his run; that he had seen the broken boxes of cigars under the counter; that they were there for some time; and that he never smoked them nor offered them for sale, nor did he sell any of them to the witness West. Witnesses testified to the good character of the defendant for honesty and veracity.

Based upon this testimony, the defendant asked the court to instruct the jury "that it is not a violation of the laws of the United States for a traveler coming from a foreign country into the United States to bring into the United States cigars in packages less than fifty, if such traveler brings such cigars into the United States for his personal use; and, if such traveler so brings such quantity of cigars into the United States, he may give the same away, and such donee may keep and retain such cigars without paying revenue taxes thereon, and he may give the same away without being so taxed.” On the trial the government proved the cigars in question were Mexican cigars, and the defendant testified positively and without objection that they were given to him on his baggage car on the railroad by railroad men who had been working on Mexican roads, and who were returning from Mexico to the United States, and who said they purchased them in Mexico. In view of this testimony and the regulations of the treasury department, the instruction refused should have been given. The only matter of hearsay in the testimony was the fact that the parties said they had purchased the cigars in Mexico. The means by which they acquired the cigars in Mexico was not material, - whether by gift, purchase, or otherwise. The material fact was, did they, while traveling from Mexico to the United States, severally bring with them not exceeding 50 Mexican cigars, and were the cigars they gave the defendant the cigars, or part of the cigars, brought by them

from Mexico? If so, they had a perfect right to give the cigars to the defendant or any other person, and their donee could smoke them him self or give them to others. Whether he could sell them, we need not decide, because, as we have seen, the charge of selling is irrelevant to the issue, under the particular clause of the statute upon which the count is based, and the government has elected to stand. It should have been left to the jury to say whether the cigars were brought from Mexico and acquired by the defendant under the circumstances claimed by him. If the facts were as claimed, he was not guilty. The grounds upon which the court refused to give the instruction were that “there was no evidence before the court that the parties from whom the defendant claimed to have received the cigars had complied with the regulations of the internal revenue department, entitling them to pass the cigars free through the custom house on the line between Mexico and Texas, or that the custom-house officers at that place had passed them as free and not subject to duty or stamp under the regulations of the department”; but a traveler or passenger coming from Mexico to the United States is not required, by the regulations of the treasury department, to do anything, to entitle him to bring with him 50 Mexican cigars, or less. He may bring with him that number of cigars without the payment of any duty, and no notice is required to be taken of this number of cigars by the customhouse officers, any more than there is of the hat or shoes which the passenger or traveler is wearing. The court charged the jury to the contrary of the instruction prayed by the defendant; told the jury that if "the defendant received the cigars, if they were Mexican cigars, and unstamped with the revenue stamp of the United States, from other parties, and that he retained in his possession the said cigars for the length of time shown by the testimony of his own witnesses, then it was his duty to have put the required revenue stamp on the cigar boxes; and, as the evidence showed this had not been done, the jury should have no difficulty in reaching a verdict on this count of the indictment.” From this instruction it is evident that the court's view of the law was that although the cigars might have been lawfully brought into the United States by passengers and travelers coming from Mexico, for their own use, in quantities less than 50, and therefore entitled to come in free of duty, nevertheless they were subject to the same internal revenue tax imposed on cigars made in this country, and that if they were in a box or boxes the required revenue stamp must be placed thereon, the same as if they had been domestic cigars. The court seems to have considered that the defendant's retention "in his possession of the cigars for the length of time shown by the testimony” imposed the duty on the defendant to have the boxes stamped; but, if the cigars had been brought from Mexico in the manner claimed, they were neither subject to duty nor to the internal revenue tax, and their retention for ever so long a time would not subject them to be taxed.

The instruction we have quoted was given after the jury had been considering of their verdict for 24 hours, and when they had come into the court room, on their own motion, for further instructions. After receiving this charge, the bill of exceptions recites:

“Thereupon the jury retired to consider of their verdict, and, having failed to agree, at 5 o'clock p. m. of that day the jury were called into the court room by the court, whereupon the court again explained to the jury the meaning of the charge preferred in the third count of the indictment, as above stated, and further said to the jury that the court could not understand how the jury could hesitate about a verdict under this count of the indictment, in view of the undisputed evidence in respect of the defendant having received and retained in his possession the cigars for a considerable length of time without having placed the required revenue stamp thereon; that, unless the jurors did their duty in obeying the law as declared to them by the court, the administration of justice must be a failure. The facts being clear and uncontradicted, and the law being explicit, the court did not understand how the jury could disagree in respect of this count of the indictment."

A fatal objection to this charge is that it is based on a partial view of the facts, and lays out of account the fact that these were Mexican cigars, and the manner in which the defendant claimed to have come into possession of them, and plainly tells the jury that it is their duty to find the defendant guilty if he “received and retained in his possession the cigars for a considerable length of time without having placed the required revenue stamp thereon.” As has been shown, if the cigars were Mexican cigars, and the defendant came into the possession of them in the manner claimed by him, he was not required to place a revenue stamp on them.

It is further objected to this charge that it invaded the province of the jury. It was doubtless the court's erroneous view of the law applicable to the facts as they were claimed to exist by the defendant that induced it to ignore all consideration of those facts, and tell the jury, in substance, that it was their duty to find the defendant guilty. If the court's view of the law was correct, the defendant was obviously guilty, for he admitted he received and had the cigars in his possession; and this, in the view of the court, constituted the offense, and rendered him guilty, even though the cigars had been brought into the country from Mexico, and came into his possession in the manner claimed by him. We need not, therefore, inquire whether the judge invaded the province of the jury, and transgressed the well-settled rule on that subject, as to which see Starr v. U. S., 153 U. S. 614, 624, 14 Sup. Ct. 919, 38 L. Ed. 811.

It is recited in the bill of exceptions that:

"The defendant was brought to the bar of the court, and, being inquired of as to whether he had anything further to say why the sentence of judgment should not be pronounced upon him, answered in the negative; and the court called the defendant's counsel, who approached the bench, and the court inquired of counsel whether it was his purpose to prosecute this matter any further, and, understanding that it was not, the court stated that he would enter a fine of one hundred dollars against the defendant, and give him a jail sentence of six months. Thereupon counsel said that he intended to prosecute an appeal or writ of error to the appellate court on the case, and the court called the defendant up, who was still within the bar, and directed the clerk to enter a sentence of a fine of one hundred dollars on execution, and that the defendant be confined in the jail of Iron county, Missouri, for a term of twelve months."

Due exception was taken to this action of the court, and it is made the basis of two contentions: First, that the court had no power, after once sentencing the defendant, to reconsider its action and impose another and more severe sentence; and, second, that the enhanced punishment imposed on the defendant by the second sentence was inflicted on him as a punishment for declaring his purpose to appeal the case to a higher court. The extent of the punishment to be inflicted on the defendant, within the limit prescribed by the stat. ute for the offense, rested in the sound judicial discretion of the court. The imposition of the first sentence did not put an end to the exercise of this discretion. The first sentence was not recorded. The defendant had not yet left the bar, and had not satisfied or suffered any part of the punishment thereunder, when it was set aside and the second sentence imposed. Under these conditions, it was competent for the court to reconsider its sentence and impose a different one. Ex parte Lange, 18 Wall. 163, 174, 191, 21 L. Ed. 872. The bill of exceptions does not show that the first sentence was set aside, and the second imposed, doubling the period of imprisonment, because the defendant had declared his intention of appealing the case. A new sentence, with enhanced punishment, based upon such a reason, would be a flagrant violation of the rights of the defendant. It would be the infliction of a penalty for the exercise of a clear legal right, and would call for the severest censure. But no such motive can be imputed to the court below. This court is bound to presume that the lower court, in recalling its first and imposing a second and more severe sentence, did so from right and proper motives, and for the purpose of imposing a punishment which, upon reflection, it deemed better suited to the offense.

The judgment of the district court is reversed, and the case remanded, with instructions to grant a new trial.

NOTE.

Power of Court to Revise Sentence.

1. Power During Term.

[a] The court may, until the term ends, revise, correct, increase, or diminish a sentence which it has imposed upon a prisoner, where the original sentence has not been executed or put into operation. -(U. S. D. C., N. Y., 1883) Ex parte Casey, 18 Fed. 86; (D. C., Or., 1876)

United States v. Harmison, 3 Sawy. 556, Fed. Cas. No. 15,308; (Ga. Sup. 1859) Jobe v. State. 28 Ga. 233; (Iowa Sup. 1886) State v. Daugherty, 30 N. W. 685, 70 Iowa, 439; (Kan. Sup. 1886) State v. Hughes, 12 Pac. 28, 35 Kan. 626, 57 Am. Rep.

195; (Mass. Sup. 1861) Commonwealth v. Weymouth, 2 Allen, 144, 79 Am.

Dec. 770; (N. Y. O. & T. 1853) Miller v. Finkle, 1 Parker, Cr. R. 374; (N. C. Sup. 1885) State v. Warren, 92 N. C. 825; In re Brittain, 93 N. C.

587; (Ohio Sup. 1877) Lee v. State, 32 Ohio St. 113; (Pa. Quart. Sess. 1877) Commonwealth v. Brown, 12 Phila. 600; (1878)

Same v. Patterson, 1 Leg. Chron. 73. [b] (Ga. Sup. 1895) After passing sentence in a criminal case and reducing the same to writing, it was improper practice for the court to make the penalty more severe simply because counsel for defendant expressed bis intention to move for a new trial.-Meaders v. State, 22 S. E. 527, 96 Ga. 299.

[c] (Mich. Sup.) Defendants pleaded guilty to a charge, and were sentenced to prison, from and including the day of sentence. The following day they were brought into court, the original sentence set aside, and they were resentenced. Held, that the first sentence went into effect the day it was pronounced, and that the second sentence was a nullity.-(1889) People v. Meservey, 42 N. W. 1133, 76 Mich. 223; (1890) Same v. Kelley, 44 N. W. 615, 79 Mich. 320.

[d] (Mich. Sup. 1890) The sentence of a prisoner under a law which did not go into effect until after the crime was committed, and which does not mitigate the punishment, is an absolute nullity; and the prisoner may be resentenced under the law in force when the crime was committed, when nothing has been done by way of carrying the sentence first imposed into execution.—People v. Dane, 45 N. W. 655, 81 Mich. 36.

[e] (Miss. Sup. 1895) Ann. Code, ß 969, provides that pointing a pistol at another intentionally, and then discharging such pistol, are misdeineanors, but makes, by the third clause, the killing of a person by the discharge of a weapon so pointed a felony. Held, that where a verdict was returned that "we, the jury, find the defendant guilty of pointing a pistol intentionally at the deceased, and the same was then and there discharged, and killed deceased," and a sentence was entered thereon as for a felony under the third clause of section 969, it was error for the court thereafter to modify the sentence, on the theory that such verdict was a conviction under the first two clauses of said section.-Thomas v. State, 19 South. 195, 73 Miss. 46.

[f] (Neb. Sup. 1895) A prisoner was sentenced to be executed on a certain day, and in the meantime remain in solitary confinement. On the following day the sentence was set aside, and a later day fixed for execution. Held that since the confinement was no part of the sentence, the second sentence was not void on the ground that the punishment first fixed had been suffered in part before the second was pronounced.—McGinn v. State, 05 N. W. 46, 46 Neb. 427, 30 L. R. A. 450.

[g] (N. Y. Sup. 1892) Under Pen. Code, $ 697, providing that, where a convict is sentenced to imprisonment for more than a year, the term must be limited so that it will expire between the month of March and the month of November, it is the duty of the judge to resentence a prisoner when his term does not expire as prescribed.—People v. Davis, 19 N. Y. Supp. 781, 64 Hun, 636.

[h] (Pa. Sup. 1868) The practice of the court of quarter sessions of Philadelphia to reconsider sentences in cases in which the rules to reconsider have been entered at the term at which the sentences were imposed is not sustainable by the rules of the common law, as an inherent power of the courts, nor has it ever been received as the common law of the state, nor is it a good local custom within that county, nor has the court power to adopt it either expressly or by usage.-Commonwealth v. Mayloy, 57 Pa. 291. 2. Power at Subsequent Term.

[a] (Iowa Sup. 1890) Defendant was convicted of a liquor nuisance, and sentenced to pay a fine, and in default thereof to be imprisoned. Afterwards, on motion of the county attorney, and without notice to defendant, the judgment was so amended that the imprisonment should extend to one day for every $3.33 of the fine imposed. Held, that the order making such amendment was void, and of no effect on the judgment formerly rendered.Elsner v. Shrigley, 45 N. W. 393, 80 Iowa, 30.

[b] (Tenn. Sup. 1880) An entry in these words: "In this case it is considered by the court that the defendant should pay a fine of $10 and the costs of the case, but suspends judgment until the next term of the court," -is a judgment, and imprisonment cannot be imposed at the next term of court.-Whitney v. State, 74 Tenn. 247.

[c] (Va. Sup. Ct. App. 1858) After a trial for misdemeanor and a verdict for a fine, the court entered up judgment for the fine and costs, and awarded a capias ad audiendum against the defendant, and at a subsequent term sentenced bim to imprisonment in the county jail. Held, that the judgment for the tiue and costs was final, and could not afterwards be modified or added to, and that awarding the capias was erroneous.—Pifer v. Commonwealth, 14 Grat. 710.

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