Com. v. Murphy

• Decision Date: 19 October 1899
• Citation: 174 Mass. 369,54 N.E. 860
• Parties: COMMONWEALTH v. MURPHY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

174 Mass. 369

54 N.E. 860

COMMONWEALTH v. MURPHY.

Supreme Judicial Court of Massachusetts, Essex.

October 19, 1899

COUNSEL

H.M. Knowlton, Atty. Gen., and

A.W. De Goosh, Asst. Atty. Gen., for the Commonwealth.

Brandeis Dunbar & Nutter, for defendant.

OPINION

MORTON J.

The defendant in this case was the plaintiff in error in the case of Murphy v. Com., 172 Mass. 264, 52 N.E. 505. In that case it was held that the statute under which he was sentenced was unconstitutional so far as it related to past offenses, and the sentence which had been imposed was reversed, and the case remanded to the superior court, under Pub.St. c. 187, § 13, for sentence according to the law as it was when the offense was committed, and before the statute under which he was sentenced took effect. The defendant was brought before the superior court on January 7 1899, pursuant to that decision, and resentenced; the sentence being to the state prison for 9 years, 10 months and 29 days,--the first day solitary, and the rest at hard labor. Under the previous sentence he had been sentenced to the state prison for not less than 10 nor more than 15 years,--the first day to be in solitary confinement. When he was resentenced he had served the solitary confinement and 2 years, 7 months, and 10 days under the original sentence. Prior to imposing the last sentence the court said that, as defendant had already served the term of solitary confinement, he would prefer not to resentence him to solitary confinement, if a written waiver thereof was filed by defendant's attorney. The attorney stated that he did not feel justified in filing such waiver, and thereupon sentence was imposed as aforesaid. The defendant duly excepted to the imposition of the last sentence, and requested that all his rights might be reserved, which was done.

The contention of the defendant is, in substance, that one who has been sentenced by a court having jurisdiction of the offense and of the person, and the right to sentence to the place designated, and who has served a substantial portion of the time for which he was sentenced, cannot be resentenced if it turns out on a writ of error brought by him that the original sentence was unlawful. He contends in his own case that the resentence constituted a second punishment for the same offense; that he has been twice put in jeopardy thereby, and has been deprived of his constitutional rights. The statute under which the case was remanded contains no limitation on the power to remand for sentence in case of a reversal for error, but it is manifest that it cannot authorize the imposition of another sentence under such circumstances as would make it an interference with the constitutional rights of the prisoner. The question then is, was the effect of the last sentence to put the defendant in jeopardy twice, or to punish him again for the same offense, or to abridge his privileges and immunities as a citizen of the United States? By "jeopardy" is meant, we think, lawful jeopardy from the commencement of the proceedings until their termination by a proper judgment and sentence or acquittal, or what the law regards as such. It has been held in numerous cases that where, either for want of jurisdiction, or from some defect in the indictment, or from such error in the course of the proceedings, the verdict has been set aside or the judgment has been arrested on a writ of error brought by the defendant or on a motion made by him, and he has been tried again, he was not thereby put in jeopardy a second time, and his constitutional rights were not abridged. Com. v. Wheeler, 2 Mass. 174; Com. v. Peters, 12 Metc. (Mass.) 387; Com. v. Roby, 12 Pick. 496, 502; Com. v. Lahy, 8 Gray, 459; Com. v. Gould, 12 Gray, 171; McKee v. People, 32 N.Y. 239; People v. McKay, 18 Johns. 212; State v. Walters, 16 La.Ann. 400; Jones v. State, 15 Ark. 261; Turner v. State, 40 Ala. 21; Gerard v. People, 4 Ill. 362; State v. Redman, 17 Iowa, 329; State v. Sutton, 4 Gill, 494; Cooley, Const.Lim. (3d Ed.) 327; Sedg.St. & Const.Law (2d Ed.) 572, 573, note a. One ground on which such a conclusion has been reached is that by bringing the writ of error or making the motion he is deemed to have waived any constitutional objection that he might have had to another trial, or to the entry of a proper judgment. 2 Bish.Cr.Law (2d Ed.) § 672 et seq. If a second trial where the verdict has been set aside or the judgment arrested does not constitute legal jeopardy, it is difficult to see how the fact that a party may have served a portion of the sentence that has been set aside for error on proceedings instituted by him can rightfully object to the imposition of another and a lawful sentence by the court to which the case has been remanded. In this case the trial and conviction were, for aught that appears, regular and legal in all respects. The only error was in the sentence. It would be strange if there was no power anywhere to correct or to authorize the correction of the error on proceedings instituted by the prisoner, except at the risk of delivering him from any further punishment for the offense of which he had been convicted. It is said in McKee v. People, 32 N.Y. 239, 245, where the case was remanded under a statute similar to ours, that the term "jeopardy" "has no relation to the reversal of an erroneous judgment, and pronouncing a legal one pursuant to a legal conviction." And in Jeffries v. State, 40 Ala. 381, it was held that a prisoner could not plead autre fois convict if the former conviction had been reversed on proceedings instituted by himself, notwithstanding he had served a part of the term of his imprisonment before the reversal. See, also, Jones v. State, 15 Ark. 261. In criminal proceedings the sentence is the judgment, or at least an essential part of it.

Though the sentence in this case was in excess of the jurisdiction it was not void, but voidable (Sennott's Case, 146 Mass. 489, 16 N.E. 448; Ex parte Lange, 18 Wall. 163, 174); and, if the defendant had completed the term for which he was sentenced, he would have paid the penalty required, and could not have been imprisoned or punished again for the same offense (Com. v. Loud, 3 Metc. [ Mass.] 328). To that extent the sentence was lawful until reversed. Sennott's Case, supra; Reg. v. Drury, 3 Car. & K. 193. Except for the statute authorizing the case to be remanded, he would have been entitled to a discharge, not because to resentence him was unconstitutional, but because at common law the court from which the writ of error issued could not itself pronounce the proper judgment or sentence, or send back the case to the inferior court to do so. Shepherd v. Com., 2 Metc. (Mass.) 419; Rex v. Bourne, 7 Adol. & E. 58; Rex v. Ellis, 5 Barn. & C. 395. But a judgment and sentence reversed are the same as if there had been no judgment and sentence (Reg. v. Drury, supra), and this must be so even if the...