Emerson v. Boyles

• Decision Date: 01 March 1926
• Docket Number: (No. 204.)
• Citation: 280 S.W. 1005
• Parties: EMERSON et al. v. BOYLES et al.
• Court: Arkansas Supreme Court

Page 1005

280 S.W. 1005

EMERSON et al. v. BOYLES et al.

(No. 204.)

Supreme Court of Arkansas.

March 1, 1926.

Rehearing Denied March 29, 1926.

Original certiorari by H. A. Emerson and others against J. M. Boyles and others, to quash a judgment of the Pulaski circuit court on habeas corpus, ordering J. M. Boyles to be released from state penitentiary. Judgment quashed.

H. A. Emerson, E. D. Chipman, and R. L. Deal, members of the state board of charities and correction and as such in charge of the Arkansas state penitentiary and those confined therein, filed a petition for a writ of certiorari against J. M. Boyles to quash an order of the Pulaski circuit court discharging him from custody and commanding his immediate release from the Arkansas state penitentiary.

J. M. Boyles filed a petition in the Pulaski circuit court praying for a writ of habeas corpus to the members of the state board of charities and corrections on the allegation that he was unlawfully imprisoned in the state penitentiary.

It appears from the record that on the 2d day of July, 1925, at a regular term of the Perry circuit court, J. M. Boyles entered his plea of guilty to the crime of manufacturing mash, and his punishment was fixed by the court at one year in the state penitentiary. It was therefore ordered by the court that the defendant be transported to the state penitentiary and confined at hard labor for the period of one year. J. M. Boyles was transported to the state penitentiary and began serving his sentence.

On the 17th day of December, 1925, being an adjourned day of the same term of the court at which J. M. Boyles entered his plea of guilty and was sentenced to the term of one year in the penitentiary, the circuit court of Perry county entered of record a judgment setting aside the sentence which reads as follows:

"On this day comes on for hearing this cause, and the court finds that the judgment entered in the cause herein should not have been entered, and it is accordingly ordered and adjudged that the judgment rendered in the above-entitled cause at the present term of this court be and the same is hereby set aside and held for naught, and the commitment heretofore issued is recalled.

"The keeper of the Arkansas state penitentiary is hereby ordered to release the said defendant, J. M. Boyles. The court deeming it best for the defendant and not harmful to society, the case is hereby continued on condition: First, that the defendant pay the cost of this court within 30 days from this date; and, second, that his behavior shall hereafter be good, pending which time he shall be released on his own recognizance.

"It is further ordered that a copy of this order be served on the keeper of the state penitentiary."

The members of the board of charities and corrections, who had J. M. Boyles in their custody in the state penitentiary, at the time the foregoing order was made, refused to obey it, and on the 22d day of December, 1925, J. M. Boyles filed his petition for a writ of habeas corpus against the members of the board of charities and corrections in the Pulaski circuit court. Upon the hearing on December 24, 1925, it was adjudged that the petitioner, J. M. Boyles, be discharged from the custody of the members of the state board of charities and corrections, and that he be immediately released from the state penitentiary.

As above stated, the object of the writ of certiorari in this court by the board of charities and corrections is to quash this order.

H. W. Applegate, Atty. Gen., and John L. Carter, Asst. Atty. Gen., for appellants.

Frauenthal & Johnson and Owens & Ehrman, all of Little Rock, for appellees.

HART, J. (after stating the facts as above).

The first inquiry presented for our consideration is the nature and extent of the power of the circuit court over its own judgments in vacating them during the same term at which they are rendered. The circuit court, in ordering the release of Boyles, proceeded on the theory that it is competent for the court to modify a judgment in either a civil or criminal case during the term at which the judgment was rendered. It is a rule of universal application that so long as a judgment or sentence of a court remains unexecuted or is not put in operation, it is in contemplation of law in the breast of the presiding judge of the court and is subject to revision and alteration during the same term at which it was rendered.

In the case at bar the circuit court set aside its judgment at the same term at which it was rendered, but it was after the defendant had served a substantial part of the sentence. J. M. Boyles entered a plea of guilty to the crime of unlawfully making mash, and was sentenced to serve a year in the state penitentiary on the 22d day of July, 1925. He was in due time transported to the penitentiary and was serving out his sentence when the court made the order setting it aside on the 17th day of December, 1925. The authorities on the power of the court to set aside a sentence in a felony case after it has been partly executed at the same term are in direct conflict.

In Bassett v. United States, 9 Wall. (U. S.) 38, 19 L. Ed. 548, in an opinion delivered by Mr. Justice Miller, it was held that it is competent for a court for good cause to set aside at the same term at which it was rendered a judgment of conviction on confession, though the defendant had entered upon the imprisonment ordered by the sentence. To the same effect, see State v. Butler, 18 A. 1105, 72 Md. 98, and In the Matter of John Brittain, 93 N. C. 587.

In Ex parte Lange, 18 Wall. (U. S.) 163, 21 L. Ed. 872, in an opinion delivered by the same learned judge, it was held that the judgment of the court having been executed so as to be a full satisfaction of one of the alternative penalties of the law, the power of the court as to that offense is at an end. In discussing the limit to the power of the court in such cases, it was said:

"The judgment of the court to this effect being rendered and carried into execution before the expiration of the term, can the judge vacate that sentence and substitute fine or imprisonment, and cause the latter sentence also to be executed? Or if the judgment of the court is that the convict be imprisoned for four months, and he enters immediately upon the period of punishment, can the court, after it has been fully completed, because it is still in session of the same term, vacate that judgment and render another, for three or six months' imprisonment, or for a fine? Not only the gross injustice of such a proceeding, but the inexpediency of placing such a power in the hands of any tribunal is manifest.

"If there is anything settled in the jurisprudence of England and America, it is that no man can be twice lawfully punished for the same offense. And though there have been nice questions in the application of this rule to cases in which the act charged was such as to come within the definition of more than one statutory offense, or to bring the party within the jurisdiction of more than one court, there has never been any doubt of its entire and complete protection of the party when a second punishment is proposed in the same court, on the same facts, for the same statutory offense."

If the court has no power to set aside a judgment which has been partly executed and increase the punishment at the same term during which the original judgment was rendered, it is as difficult to see upon what principle it would have the power to set aside the judgment and mitigate the punishment. When a judgment is reversed or set aside, it is just as if it had never been rendered, and the defendant in the case will be placed in jeopardy just the same whether his punishment is increased or diminished at the second trial. To illustrate: If a person should be indicted and tried for murder in the first degree and found guilty of manslaughter and his punishment fixed at the lowest term for that crime, there would be an implied acquittal of the higher degrees of homicide, and he could not be tried for murder upon securing a new trial in the circuit court or a reversal of the judgment in the Supreme Court. But upon being retried, he could be again convicted of manslaughter and his punishment fixed at the highest term for that offense. The reason is that when he secures a new trial or a reversal of the judgment, as the case may be, the original judgment is set aside and is in effect as if it had never been rendered. Hence no plea of former jeopardy could avail him anything so far as the trial for manslaughter is concerned. We think the better reasoning as well as the trend of authority is that where the defendant has executed or entered upon the execution of a valid sentence, the court cannot, even during the term at which the sentence was rendered, set it aside and render a new sentence. 16 C. J. 1314.

In 12 Cyc. 783, it is said:

"At any time during the term the court has power to reconsider the judgment, and to revise and correct it by mitigating and even by increasing its severity, where the original sentence has not been executed or put into operation; but where the prisoner has paid his fine or his imprisonment has begun, the court has no power to recall him to revoke his former sentence and impose one which inflicts a greater punishment."

And in 2 Bishop's New Criminal Procedure (2d Ed.) § 1298, it is said:

"The power of the court to alter its docket entries and records during the term wherein they are made, includes the right within such time to revise, correct, and change its sentences, however formally pronounced, if nothing has been done under them. But steps taken under a sentence — for example, a substantial part execution thereof — will cut off the right to alter it, even during the term. And with the expiration of the term the power expires."

See, also, Wharton's Criminal Procedure (10th Ed.) § 1853; 8 R. C. L. 245; 25 Enc. of Law (2d Ed.) 315; and 19 Enc. of...