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 II. 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.

12

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.1 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.Î3

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.
16. Note: 6 Ann. Cas. 452.

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 tune.

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.

in all cases of felony it has been held that it is not indispensable in cases not capital. Though in some states this formality is made necessary by statute, there is a growing tendency among the courts in the United States to look on it as a formality, the omission of which will not always invalidate the judgment. However, the forms of record are deeply seated in the foundations of the law; and as they conduce to safety and certainty, they ought not to be disregarded when the life of a human being is in question. In the light of the modern tendency to treat the allocution as a mere formality there is no question but that it can be waived by the defendant, and this is done where counsel is present and no request to be heard is made and no objection is interposed to being sentenced without being heard. The ancient practice was for the court to call on the prisoner, if he had any thing to say why sentence should not be passed. It originated at a time when prisoners were not allowed the benefit of counsel, and when the court was counsel for the prisoner so far as to see that he was deprived of no legal right.10 The reason given for the importance attached to this form in England is, that the revising court may see that the prisoner had an opportunity of moving in arrest, or of pleading a pardon. But it is not material now, whether a pardon was produced before or after judgment, as no attainder or other consequences result from a capital conviction now, which a pardon even after judgment may not remove.11 So far as the allocution is necessary it is generally held that it must be shown by the record,12 though some authorities take the opposite view.13 But the omission of the formality is not a ground for a reversal of the conviction and a new trial in any case, because a defendant is never called on to speak until after verdict.14 The only consequence is that the sentence may be reversed and the defendant remanded for a proper sentence.15

236. Other Formalities.-Where it is required by statute that the defendant shall be informed of the verdict of the jury before sentence

8. People v. Faber, 199 N. Y. 256, 92 N. E. 674, 20 Ann. Cas. 879.

9. State v. Hoyt, 47 Conn. 518, 36 Am. Rep. 89.

718, 24 Am. Rep. 658; McCue v. Com., 78 Pa. St. 185, 21 Am. Rep. 7.

12. 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; Hamilton v. Com., 16 Pa. St. 129, 55 Am. Dec. 485; McCue v. Com., 78 Pa. St. 185, 21 Am. Rep. 7.

13. State v. Hoyt, 47 Conn. 518, 36 Ill. 507, 21 N. E. 525, 11 A. S. R. Am. Rep. 89; Gannon v. People, 127

147.

14. Ex parte Gibson, 31 Cal. 619, 91 Am. Dec. 546; Gannon v. People, 10. Jones v. State, 51 Miss. 718, 24 127 Ill. 507, 21 N. E. 525, 11 A. S. R. Am. Rep. 658. 147; State v. Trezevant, 20 S. C. 363, 47 Am. Rep. 840.

11. State v. Hoyt, 47 Conn. 518, 36 Am. Rep. 89; Jones v. State, 51 Miss.

15. State v. Hoyt, 47 Conn. 518, 36

is pronounced, the court cannot pronounce a valid sentence without having first informed the defendant of the verdict of the jury in addition to giving him an opportunity to say why judgment should not be pronounced against him. This does not call for a reversal of the case, but simply requires that it be remanded to the court below, with directions to pronounce judgment on the verdict in the manner prescribed by the statute.16 A court may pass sentence without having the original indictment before it, and if the original has been stolen from the files its place may be supplied by a copy, like any other record or pleading.17 It is sometimes provided by statute that before imposing sentence on a plea of guilty in a felony case the court shall privately examine the defendant for the purpose of determining the fact that the plea was voluntary, and to aid the court in fixing the punishment. Where the statute so directs the formality should be complied with.18

Improper Sentence

237. Unauthorized Sentence; Alternative Sentence. The imposing of an unauthorized sentence does not, in the absence of any other error affecting the trial, necessitate the granting of a new trial, or vacation of the verdict found, but is only a ground for reversing the erroneous judgment or sentence, leaving the verdict to stand as a basis for a new and proper sentence.19 But it is not always necessary to reverse an improper sentence, for where a part is illegal, the appellate court may, if the sentence is divisible, modify it by striking out the illegal part and affirming the balance.20 The word "or" in criminal statutes cannot be interpreted to mean "and" when the effect is to aggravate the offense or increase the punishment. The word, when used in respect to punishments, indicates alternative punishments, only one of which can be imposed. Accordingly where a statute gives the court power to impose a sentence of imprisonment or a fine the imposing of both is erroneous.

238. Excessive Sentence; Inadequate Sentence.-When sentence

Am. Rep. 89; McCue v. Com., 78 Pa.
St. 185, 21 Am. Rep. 7; State v.
Trezevant, 20 S. C. 363, 47 Am. Rep.
840.

16. Evers v. State, 84 Neb. 708, 121 N. W. 1005, 19 Ann. Cas. 96.

17. Mount v. State, 14 Ohio 295, 45 Am. Dec. 542.

18. People v. Converse, 74 Mich. 478, 42 N. W. 70, 16 A. S. R. 648.

19. Irvin v. State, 52 Fla. 51, 41 So. 785, 10 Ann. Cas. 1003; State v. Klock, 48 La. Ann. 67, 18 So. 957, 55 A. S. R. 259; Ex parte Burden, 92 Miss. 14, 45 So. 1, 131 A. S. R. 511; see also

Ex parte Bond, 9 S. C. 80, 30 Am.
Rep. 20.

20. Pressly v. State, 114 Tenn. 534, 86 S. W. 378, 108 A. S. R. 921, 69 L.R.A. 291; State v. Feilen, 70 Wash. 65, 126 Pac. 75, Ann. Cas. 1914B 512, 41 L.R.A.(N.S.) 418.

1. Tanner v. Wiggins, 54 Fla. 203, 45 So. 459, 14 Ann. Cas. 718; Spies v. People, 122 Ill. 1, 12 N. E. 865, 17 N. E. 898, 3 A. S. R. 320; In re McNeil, 68 Kan. 366, 74 Pac. 1110, 1 Ann. Cas. 733 and note.

2. Note: 1 Ann. Cas. 734.