Ex-Parte Ephraim Williams, 26 Fla. 310

Maxwell, J. The facts set forth in the petition of Williams are, that at the Fall term, 1889, of the Circuit Court for Jefferson county, he was tried for the larceny of a steer, and convicted; that at said term he was sentenced by Hon. J. F.

McClellan, the Judge then presiding in said court, in these words: “ It is considered by the Court that you, Ephraim Williams, for your said offence, do pay the costs of this proceeding, as well as a fee of ten dollars to the State’s attorney, and that further sentenced be postponed until the next term of this court;” that upon complying with said sentence he was released from custody; that at the next term of said court (Spring term, 1890,) he was present, and remained in attendance the entire term, but the said cause against him was not on the docket and not called at said term, and the court adjourned without having passed further sentence ; and he claims that he was thereby discharged without day.

At the ensuing Fall term of said court, 1890, the Hon. David S.

Walker, the Judge thereof, ordered the Sheriff to take him (Williams) into custody, and the Sheriff having done so, led him to the bar, whereupon the Judge asked him if he had anything further to say why sentence should not be passed upon him for the said offence of larceny of which he had been formerly convicted as aforesaid, to which he answered, by his attorneys, that the court was without jurisdiction to pass any sentence upon him : 1st, because he was not in custody under any process of court; 2d, because there was no criminal charge pending against him in said court, and 3d, because of the facts herein-before stated upon which he claims that he was discharged without day.

And his said attorneys moved on these grounds that he be discharged, but the court denied the motion, and sentenced him to two years at hard labor in the State’s prison. He comes here asking a discharge from the custody of the lessee of convicts under said sentence, because he is in such custody without lawful authority. E. B.

Bailey, lessee of convicts, makes return to the writ, after reciting the conviction of Williams in 1889, and the action of the court thereon, as stated in the petition, that at the Spring term, 1890, of said court there was a general order of court that “all matters and things not otherwise disposed of be continued to the next term of court;” that at the November term, 1890, Williams was sentenced to two years’ imprisonment, as stated in the petition, and that he was placed in custody of respondent by the Sheriff of Jefferson county by virtue of a commitment thereafter issued by the Clerk of said court, a copy of which is attached to the return.

That sentence may be suspended on conviction of an offender, because of mitigating circumstances, or the pend-ency of another indictment, or other sufficient cause, is not denied, and in practice is frequently done in this State, and in other States is held to be permissible. Commonwealth vs. Dowdican’s Bail, 115 Mass., 133; State vs. Addy, 43 N. J. L., 113. And it does not follow necessarily from suspension that a sentence may not be pronounced afterwards.

But in this case it is argued that the order, or sentence, of Judge McClellan at the Fall term, 1889, was not a simple suspension of sentence, but was itself a sentence, and that the court had no power to adjudge a further penalty. If this view can be sustained it is on the ground that the law does not allow two sentences for the same offence. This is undoubtedly the law, and the only question here is, whether the sentence referred to is one which comes within its reason and meaning.

It is an order merely for the payment of costs, the fee of the State’s attorney being a part thereof, and then a postponement of further sentence. The purpose of the law is to prevent, punishment of a person twice for the same offence. All persons are as much entitled to this protection as they are to protection against being twice put in jeopardy for the same offence, and the right to both is in this country a sacred and fundamentatal one. Is the sentence a violation of this right ?

It will be found upon examination of the authorities cited to sustain the position of petitioner thát in every case where the court overruled the action of the lower court there were two sentences, each imposing a penalty prescribed for the offence, and thus two distinct punishments; and that where the sentence was changed at the same term of court, as the law permits so long as execution of punishment has not commenced under the first sentence, the change was condemned because the punishment had been put in course of execution, or had been fully executed. See ex-parte Lange, 18 Wall., 163; Commonwealth vs.

Foster, 122 Mass., 317; State vs. Addy, 43 N. J. L., 113; Brown vs. Rice, 57 Me., 55; State vs. Davis, 31 La. Ann., 249. But to have this effect we understand that the first sentence must inflict the whole or some part of the penalty prescribed for the offence. -For instance, in the case of the State vs.

Addy, supra, where the party was convicted of a nuisance in obstructing a culvert, and the penalty of the law was fine or imprisonment, and also condemnation to abate the nuisance, and the court suspended sentence on payment of the costs and abatement of the nuisance, but afterwards sentenced the party to imprisonment in jail, it was held that as the abatement of the nuisance was a part of the penalty, the sentence to do that was such sentence in the case; that the second sentence to imprisonment, though it might have been included in the first, was illegal.

But on looking into the opinion of the court it will be seen that the matter of payment-of costs had nothing to do with its decision; and we find no case where a requirement to pay costs, with suspension of further sentence, is treated as a sentence in such sense as to forbid a subsequent sentence imposing the penalty prescribed by law for the offence. The case of the Commonwealth vs. Dowdican’s Bail, 115 Mass., 133, in effect holds the contrary.

What we call suspension of sentence is there called laying the indictment on file, and the court said that neither an order for that purpose, nor the payment of costs, entitled the defendant to be finally discharged. We think this a proper conclusion for the present case, and that a compliance with the order to pay costs did not entitle Williams to a discharge.

The terms of the order, suspending further sentence till the next term, negatived the idea of a discharge, and his conduct in attending the court during its next term showed that, whether or not he was in actual or constructive custody, he was there understanding that he was still subject to the order of the court. Even if he was not in custody it made no difference, for if he failed to present himself the court retained power over the case to order him brought before it.

We mean only that the order for the payment of costs did not of itself take away the power of the court to pronounce sentence at a subsequent term when a different judge was presiding, but whether or not there was otherwise error in pronouncing the sentence in this case, is a matter to be decided upon a writ of error.

A further contention in behalf of the petitioner is, that if the authority of the court, as to sentence, was not exhausted by the order to pay costs, it was lost after the next term of court (Spring of 1890) because the case was not docketed, was not called, and no action whatever taken in it—in other words, that this state of facts worked a discontinuance of the case.

If the case was still undisposed of and pending, only awaiting further sentence, as we have held, the question is, whether the failure of the clerk to docket the case, and the non-action of the court in it at that term, other than in a general order of continuance, put an end to it, so that it was no longer alive and pending for further sentence. We think not, and it is so held in Commonwealth vs. Dowdican’s Bail, supra, with this in the present case to strengthen that decision, that there no general or special order of continuance appeared, or seemed to be considered necessary.

This is the rule in civil cases, and we see no reason why it should not also prevail in criminal cases. See Forrester vs. Forrester, 39 Ala., 320; Moreland vs. Pelham, 7 Ark., 338; Gilbert vs. Hardwick, 11 Ga., 599; Pierce et al. vs. Bank of Tennessee, 1 Swan, 265; Davidson vs. Middleton, 3 Rich., 349. Applying the rule here, there was no discontinuance of the case, but it passed over on failure of the court to take action, and was in contemplation of law a still pending case, awaiting sentence. The jurisdiction of the court, therefore, still subsisted.

As to the authority of a judge who did not preside in the trial, but was afterwards judge of the court in which the case was still pending, we are of opinion that there is no law which prevents him from passing such sentence as the nature of the case demands. If because he did not hear the case on trial he cannot pronounce sentence, it would be a case in which there can be no infliction of penalty, notwithstanding the conviction.

It would seem that such a result is of itself sufficient to show the fallacy of the position that another judge, who presides in the court after the trial, cannot pass a sentence appropriate to the offence. While he may not be as well informed of the circumstances of the case as the trial judge, there will be sources of information open to him. The only authority we have seen on the subject is that of Pegalow vs. State, 20 Wis., 65, where it is held that a judge of the Circuit Court may pronounce sentence upon a prisoner convicted before his predecessor in office.

The apparent reservation of the court, based on the fact of a want of discretion in that case as to penalty^ seems to us of no force to affect the main point of the decision, and as having been inserted from abundance of caution, and not as a decision that where discretion existed the sentence would not be pronounced by the successor in office. But counsel for the petitioner cite 1 Chitty’s Criminal Law, 696, as showing that the law is not. as laid down by the Wisconsin court.

Chitty says : “Justices of oyer and terminer, goal delivery, and of the peace, have power to give judgment by virtue of their respective commissions.

But at common law, by granting a new commission, all the proceedings taken before the former commissioners expired, and therefore if from any cause a prisoner had been convicted, but judgment delayed, or sentenced, and no execution awarded before former commissioners, no judgment could be given or execution ordered by their successors.” This grew out of a peculiar judicial system in England under which a commission was issued out of the King’s Bench to justices of a lower court to try cases either on indictment originating before them, or upon indictment sent down with the commission from the higher court, and under which they had power either to give judgment in cases originating before them, or might send it up to the Ring’s Bench with the postea, or record of conviction, and with the prisoner, for judgment in that court; but as to a case sent down with the indictment they had no power to give judgment, and after conviction ' in the case, were required to send it to the King’s Bench in the way just mentioned for judgment there.

The commission was not to an office, but to justices already in office directing trials by them, and when the commission expired all the proceedings in any case not disposed of fell with it, and succeeding commissioners could not carry it on further, even to trial where there had been none. Chitty, supra, 2 Hale’s Pleas of the Crown, 404. Hence, when it is said that succeeding commissioners cannot give judgment on convictions before their predecessors, this results from the nature of the commission, and not from any law which prevents one judge from giving judgment on a conviction before another.

Indeed, the law in some cases required, and in others permitted, this very thing—the court of King’s Bench giving judgment on convictions before commissioners. But, as seen in Hale, the law itself was changed by statute in England, so that afterward’s the proceedings were not arrested on expiration of the commission, and succeeding commissioners were empowered to give judgment on convictions before their predecessors, but still there was nothing to prevent the judgment from being given in the King’s Bench.

With this explanation of the law cited by counsel, we think it does not sustain their position, and that a judge in this State, under the circumstances under which Judge Walker passed sentence on the petitioner, was not deprived of jurisdiction for that purpose. Having come to the conclusion that the court had not lost jurisdiction of the case when the final sentence was passed, and it not being claimed that it is void for any other reason, it follows that neither that nor the first sentence can be attacked by habeas corpus; and if there was error in either, or both, it became the subject of writ of error.

Ex-parte Bowen, 25 Fla., 214, 6 So. Rep., 65, Bowen vs. State, Ibid, 645, 6 So. Rep., 459. The prisoner will be remanded.