Minto v. State

• Decision Date: 29 November 1913
• Parties: MINTO v. STATE.
• Court: Alabama Court of Appeals

64 So. 369

9 Ala.App. 95

MINTO v. STATE.

Court of Appeals of Alabama

November 29, 1913

On Application for Rehearing

Appeal from City Court of Montgomery; Gaston Gunter, Judge.

Mike Minto was convicted of keeping a gaming table, and he appeals. Former opinion (see 8 Ala.App. 306, 62 So. 376) affirming a judgment of the lower court, modified, and the judgment of the lower court reversed and remanded, in part.

Hill Hill, Whiting & Stern, of Montgomery, for appellant.

R.C Brickell, Atty. Gen., and W.L. Martin, Asst. Atty. Gen., for the State.

WALKER P.J.

In the opinion heretofore rendered in this case, the court considered the questioned rulings of the trial court in the proceedings which led to the conviction of the appellant. It is only since the rendition of that opinion that the fact has been called to the attention of the court or has been noticed by it, that by the judgment appealed from, rendered on a verdict of guilty which assessed against the defendant only a fine, he was sentenced to imprisonment in the penitentiary for a term of six months. This sentence was not authorized by law, as the statute (Code, § 7620) provides that "in all cases in which the imprisonment or sentence to hard labor is twelve months or less, the party must be sentenced to imprisonment in the county jail, or to hard labor for the county." It is plain that, so far as the sentence of the defendant to imprisonment is concerned, the judgment of the trial court should have been reversed. Robinson v. State, 6 Ala.App. 13, 60 So. 558. As the judgment of this court in the case was rendered during its present term, that judgment is subject to be recalled or to be changed in any respect in which a change of it may be required to make it conform to the law, unless, by reason of the existence of some special state of facts, the court has lost the power to render such judgment in disposing of the appeal as should have been rendered. It is urged by the counsel for the appellant that this court cannot now take such action as will result in the imposition upon the appellant of a legal sentence to imprisonment or to hard labor, as it may be that, in consequence of the judgment of affirmance heretofore rendered, he has served part of the unauthorized sentence to imprisonment in the penitentiary. There is nothing in the record to indicate that any part of such sentence has been executed. But, whether or not the defendant has commenced the imprisonment provided for, the fact does not deprive this court of the power to make such disposition of the case brought into it by the appeal as will result in the correction of the error committed by the trial court in imposing a sentence not authorized by law. The defendant could not have served any part of a former sentence of imprisonment, as there has been no such sentence which the law can recognize.

We are cited to rulings to the effect that, when a defendant in a criminal case 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. 12 Cyc. 783, 784, and authorities there cited. In the cases cited, the sentence first imposed was one which the court had the power to impose. In such a case it has been deemed that to permit the imposition of another sentence after the one first imposed had been wholly or partially executed would be in contravention of the rule against any one's being twice lawfully punished for the same offense. Ex parte Lange, 18 Wall. 163, 21 L.Ed. 872; State v. Meyer, 86 Kan. 793, 122 P. 101, 40 L.R.A. (N.S.) 90, 94, Ann.Cas. 1913C, 278. The reason which supports this prohibition of a second sentence cannot apply when the first sentence was a void one, or, in the eye of the law, no sentence at all. The sentence first imposed cannot be treated as valid, for the purpose of preventing the imposition of another one, and at the same time as void for the purpose of enabling the defendant to obtain a discharge from any restraint under it. We do not find that anything has occurred which is entitled to be given the effect of disabling ...