Journal of Criminal and Criminology Volume 30 Article 12 Issue 1 May-June

Summer 1939 Recent Criminal Cases

Follow this and additional works at: https://scholarlycommons.law.northwestern.edu/jclc Part of the Commons, Criminology Commons, and the Criminology and Criminal Justice Commons

Recommended Citation Recent Criminal Cases, 30 Am. Inst. Crim. L. & Criminology 130 (1939-1940)

This Criminal Law is brought to you for free and open access by Northwestern University School of Law Scholarly Commons. It has been accepted for inclusion in Journal of Criminal Law and Criminology by an authorized editor of Northwestern University School of Law Scholarly Commons. RECENT CRIMINAL CASES

Edited by the LEGAL PUBLICATIONS BOARD or- NORTHWESTERN UNIVERSITY SCHOOL OF LAW

OLIVER M. TOWNSEND, Case Editor

COOLING TIME - A DESIRABLE reasonable man is the case of Peo- TEST.- [Kentucky] The strict in- ple v. Ashland, 20 Cal. App. 168, structions and rulings of the 128 Pac. 798 (1912), wherein a con- on the of "cooling time" viction for was affirmed in cases of induced by against a defendant who, informed adequate have resulted by his wife that she had twice com- in many unduly severe and unjust mitted adultery with deceased, the punishments. Most courts say that first time under violence, searched no matter how grievous the provo- for deceased and shot him seven- cation may have been, if there was teen hours after he had been first time for a reasonable man to cool informed, a sufficient time to cool his passion the offense is murder; said the . Another court in whether or not the passion actually Commonwealth v. Moore, 2 Pa. 502 did subside is immaterial. Nevada (1864), held that where the de- v. Hall, 9 Nev. 58 (1893); Nowacryk fendant's wife confessed a few v. People, 139 Ill. 336, 28 N. E. 961 hours before the homicide that she (1891); Ragland v. State, 125 Ala. had committed adultery with de- 12, 27 So. 983 (1900); In Re Far- ceased, there was no ground for ley, 3 Okla. Crim. 719, 101 Pac. 295 holding" that the offense was man- (1910); Holcomb v. State, 103 Tex. slaughter rather than murder. Crim. Rep. 348, 281 S. W. 204 There had been ample time for re- (1926). flection after the defendant learned The legislatures have realized of the adultery An extreme case that a man greatly agitated and is Collins v. Florida,88 Fla. 578, 102 excited by a grave provocation, So. 880 (1924), where the deceased may to "take the law into made several improper proposals his own hands," and have felt that to defendant's wife. To get away in the name of justice a less severe from him defendant and wife punishment than that for murder moved eighteen miles away. Fin- should be provided. Voluntary ally, deceased visited the home of have been defendant, forced the wife into his the result. The courts, however, car, drugged her and had inter- appear to have unnecessarily lim- course with her. Upon learning of ited this legislative intent. this incident, defendant searched Exemplary of the majority ruling for deceased and killed him, several limiting cooling time to that of a hours later. The court, although [130] RECENT CRIMINAL CASES not disturbing the jury verdict of the Court were striving for-a less manslaughter, said, ". . but in severe punishment. such case the slayer cannot take The Court in State v. Holmes, time and deliberate upon the 12 Wash. 169, 40 Pac. 735 (1895), wrong, and then act upon an im- also applied the majority rule with pulse to avenge the insult by taking a great deal of hesitation. The de- the life of the wrongdoer." fendant, a weak colored boy was assaulted in a most brutal and In the recent case of Golden v. cowardly manner by the deceased, Commonwealth, ... Ky...., 121 S. a large powerful white man, who W. (2d) 21 (1938), it did not occur bragged that he intended to have a to the attorney to request, "nigger" before the day was over. or to the trial court to give, an in- As soon as the defendant was able struction on voluntary manslaugh- to break away from the deceased, ter, this failure to do so probably he procured a gun and returned being the result of the previous and shot him. The elapsed time strict interpretations of "cooling between the beating and defend- time." ant's return was from ten to fifteen In that case the defendant was minutes. found guilty of murder in the first The Court said "this is a hard degree. A trifle more than a year case and the condition of the de- previous to the killing, the de- fendant is touching; and whether ceased's brother had seduced and or not, if this court had sat as gotten with child the appellant's jurors in this case, we would have fifteen year old daughter. The af- felt justified in returning a verdict ternoon before the homicide the of murder in the first degree is deceased, while returning the bas- questionable . . . ." The Court tard child to the home of its then went on to say, that the case mother, wilfully made an indecent having been submitted to the jury exposure of his person before the under proper instructions, and it women in the house. Defendant's being a close question under the efforts to stop such conduct re- facts, they would not disturb the sulted only in jeering replies and verdict. The trial court had in- oaths from the deceased. Appellant structed the jury not to consider was so greatly excited over the de- whether the defendant did cool his ceased's utter contempt for the passions but whether he had time women of his family that he was to cool them. unable to sleep most of that night. A much more satisfying and just The next morning he shot deceased. result was reached by the Mis- The Kentucky Court of Appeals souri Supreme Court in the case of expressed its dissatisfaction with State v. Gruggin, 147 Mo. 39, 47 S. the heavy penalty meted out, but W. 1058 (1898), by applying a lib- found itself handcuffed so it could eral interpretation of the "cooling do nothing else but affirm. Evi- time" factor. In this case the de- dently the court believed that this fendant was informed at nine was not a place for an instruction o'clock in the morning that his on voluntary manslaughter al- young daughter had been raped by though a conviction on that offense the deceased, about a month pre- would have been the answer to viously. The defendant was deeply what both the defense attorney and affected by this incident, and at 132 RECENT CRIMINAL CASES three o'clock that afternoon shot offender by virtue of a prior con- the deceased. The trial judge viction in a United States District charged the jury that they should court in New York for uttering a find the defendant guilty of mur- counterfeit federal reserve bank der, there being sufficient cooling note. The state court held that time. The Supreme Court re- the was his second versed, saying a manslaughter because his first offense, uttering a charge should have been given. counterfeit bill, was punishable un- Wharton in his treatise on crim- der a state also. People v. inal law (12 ed., Sec. 609) succinct- Fury, 18 N. E. (2d) 650, (N. Y., ly states the more desirable view. 1939). "Whether there has been cool- The habitual offender statute ing time is eminently a question of under which the defendant was fact, varying with the particular sentenced, states that, "A person, case and the condition of the party. who, after having been once or There are some provocations twice convicted within this state, which, with persons of even tem- of a , of an attempt to com- perament, lose their power in a few mit a felony, or, under the of moments; while there are others any other state, government, or which rankle in the breast for days country, of a crime which, if com- and even weeks, producing tempo- mitted within this state, would be rary insanity. Men's tempera- a felony, commits any felony, ments, also, vary greatly as to the within this state, is punishable up- duration of hot blood; and it must on conviction of such second or be remembered that we must de- third offense, as follows.. ." (ital- termine the question of in ics supplied). N. Y. CoNsoL. LAws each case, not by the standard of (Baldwin, 1938), PENAL LAW, sec. an ideal "reasonable man," but by 881. that of the party- to whom the This statute is representative of malice is imputed. Hence, whether. the ambiguity which exists in the there has been cooling time, so as habitual offender statute of many to impute to the defendant malice, states. (CoLo. STAT. ANN. (Michie, is to be decided not by an absolute 1935) c. 550, see. 551, MINN. STAT. rule, but by the conditions of each (Mason, 1927) see. 9931-1, ORE. case." CODE ANN. (1930) sec. 13-2801, Surely, the view as expressed by UTAH REV. STAT. ANN. (1933) sec. Wharton and applied in State v. 103-1-18) "Within this state," may Gruggin (supra) is much more in- be taken to mean, within the state telligent and better serves the ends boundaries, as opposed to, within of justice than does the view ap- the jurisdiction of the state courts. plied in the majority of the cases. In People v. Gutterson, 244 N. Y. Huco KoRANDA. 243, 155 N. E. 113 (1926), the am- biguity in the wording of the stat- ute was removed by qualifying it CONSTRUcTION-HABITUAL OFFENDER through another of the state stat- STATUTES utes. The holding of that case was I. that a prior conviction in a federal Upon conviction in the New court for using the mails to defraud York State court for burglary, de- did not bar the defendant from fendant was sentenced as a second being sentenced under the indeter- RECENT CRIMINAL CASES 133 minate sentence statute. This stat- respect to the particular type of ute provided that, "a person never offense involved will the before convicted of a crime pun- state's laws be a valid standard. ishable by imprisonment in d state But, under the broader construc- prison," shall receive an indeter- tion of the statute, the standard is minate sentence (italics supplied). expanded to include federal laws, N. Y. CONSOL. LAWS (Baldwin, that is, within the state boundaries, 1938), PENAL LAW, see. 2189. it covers the federal courts in the The holding of the Gutterson state as well as the state courts. case left the possible scope of sen- Hence, any federal offense if com- tencing under the habitual offender mitted within the state boundaries, statute to only those offenses, would be a felony in the federal "punishable by imprisonment in a courts of the state, and fall within state prison." The principal case the purview of the statute. extended the statute completely It might be said that the legis- over that scope by holding that the lature would not desire to have all prior conviction need not be in a federal offenses deemed prior con- state court, providing only, that the victions. This may be answered prior offense would have been a by pointing out that there is no bar felony if committed within the to excluding any offense they may jurisdiction of the state courts. so desire by subsequent statutes. Other states having the same The advantage of the broader in- type of ambiguity in their habitual terpretation is the bringing of offender statute (supra), must in federal offenses within the scope of the future face the same problem. the state penal statutes indirectly, If there is no qualifying statute as which except in cases of concur- in New York, their courts may rent jurisdiction statutes, could not have to decide on the merits of one be done directly. Is it unreason- construction in preference to the able to infer that the statute was other, as a possible basis for indi- worded with the intent to protect cating legislative intent. the state from the habitual crim- Convictions under jurisdictions inal, who, though having been other than that of the state are of convicted many times in the fed- two types: 1. Convictions under eral courts, is facing his first state the laws of the other states. 2. sentence? Convictions under federal laws. The concurrent jurisdiction stat- The state may legislate in any ute involved in the principal case field which a sister state may. Thus, raises many other problems that as the laws of the principal state yet have not been before the would be a true standard of the courts. The defendant had com- legislature's attitude as to the penal mitted the counterfeiting in New nature of a prior offense committed York. Hence he may have been under the laws of another state. tried and convicted under the New This is not true in respect to York counterfeiting statute without prior federal convictions. The prin- double jeapardy, United States V. cipal state is precluded from legis- Lanza, 260 U. S. 377 (1922). The lating in most of the fields which question is then, do these two con- Congress acts. Only where there victions for the same offense make are constitutional state statutes such an offender subject to the giving concurrent jurisdiction in second offender statute? Or, to 134 RECENT CRIMINAL CASEb carry the question one step fur- ada, and it has been so held; Hen- ther, will a subsequent state con- derson v. Northwestern Mutual viction for another act subject him Fire Ass'n, 34 B. C. R. 411, 43 C. to a sentence as third offender? C. C. 217 1 D. L. R. 339 (1925). It would seem that under a liter- Thus, this Canadian statute covers al interpretation of the holding of both the when the principal case, the answer to asportation is necessary and a new both questions would be in the af- crime of . In the instant case firmative. the court held that the crime ol It would seem more reasonable, stealing an automobile, with no as- however, that the legislative intent portation, a felony under the Can- to get at the habitual criminal adian code did not amount to a would best be served by judging felony under the code of the prior offenses by the number of Criminal Procedure (Crim. Stat. criminal acts perpetrated, as op- Ann., 1932, Ch. 7, "Habitual Crim- posed to the number of convictions. inals," Art. 709) which provides JACK JACOBS. that "Any person who, after having been convicted, within this State, I". of a felony, or of an attempt to Upon prosecution for murder, commit a felony, or who, after hav- defendant was convicted of man- ing been convicted under the laws slaughter. Previously he had been of any other State, government, or convicted of grand larceny in Ore- county, of a crime which, if com- gon, and later was convicted of mitted within this State, would be the crime of "stealing an automo- a felony, commits any felony, with- bile" in Canada. Now the State in this State, upon conviction of successfully obtained his conviction such second offense, shall be pun- as a third offender under the ished as follows: . . ." Louisiana multiple offender statute. California, New York, , Upon' appeal, the conviction was Michigan, Colorado, and Oregon amended, finding the accused guilty among others have similar habitual as a second offender. Held: the criminal statutes; Cal. Penal Code Canadian offense would not have (Deering, 1937) sec. 644, N. Y. been a felony in Louisiana so can- Penal Law, sec. 1942, Tex. Ann. not be considered in determining Penal Code (Vernon, 1925) Art. the number of previous offenses 63, Mich. Comp. Laws (1929) sec. committed, State v. O'Day, 185 So. 17, 339, Colo. Stat. Ann. Ch. 48, 290 (La. 1938). sec 551, Oregon Code Ann. (1930) The Canadian statute under sec. 13-2802. In New York, at- which the defendant was previously tempts to commit within a convicted provides in part, "Theft statute providing for punishment is committed when the offender for fourth or subsequent convic- moves the thing or causes it to tions include which are move or to be moved, or begins to no more than , while cause it to become movable, with the word felony, as used in the intent to steal it," Dom. Crim. same statute, refers only to Code, Art. 347. (including attempts) which are From this provision it is obvious strictly of the grade of felony as that asportation is no longer nec- defined by section 2 of the Penal essary to the crime of theft in Can- Law, Stauber v. Larkin, 271 N. Y. RECENT CRIMINAL CASES

S. 305 (1934). Therefore, under which if not stnnred by an outside the New York interpretation, the agency would have culminated in defendant in the instant case, if the completed crime. his Canadian crime were declared Therefore the defendant's act in an attempt in Louisiana (whether Canada, although not a felony in or felony), would Louisiana by this court's interpre- have been found guilty as a third tation, actually was, or would have offender. been an attempt to commit the fel- The Supreme Court of Louisiana ony of grand larceny, and would interpreted their statute strictly, have resulted in the conviction of however, allowing no deviation O'Day as a third offender, in any from the formal tenor of the words. state wherein an attempt to com- Thus defendant was freed of the mit grand larceny is punishable, if third offender charge because the coupled with the New York con- Canadian crime did not amount to struction of the statute. This hi- a felony in Louisiana. Owing to atus in the Louisiana law results the fact that there is no crime of in a discriminatory inconsistency attempt to commit larceny in as attempts to commit , to steal Louisiana, this defendant would automobile parts, and the like are have been guilty of nothing under made criminal acts by statute, and that state's laws. thus, under the New York rule, An attempt is an intended ap- would subject perpetrators of such parent unfinshed crime. Graham acts in other states to the habitual v. People, 181 Ill. 477, 155 N. E. 179 offender statute if they subsequent- (1899). The question of whether ly committed a crime in Louisiana. an attempt has been made to com- But an attempt to steal an automo- mit a crime is determined solely bile as in the instant case is not an by the condition of the actor's mind offence within the purview of the and his conduct in the attempted statute. Perhaps the legislature commission of his design, People v. will plug this loophole by a suit- Moran, 123 N. Y. 254, 25 N. E. 412 able statute. (1890). People v. Jaffee, 98 N. Y. LEO BULLINGER. S. 486, affirmed in 185 N. Y. 497 (1906). To constitute attempt to commit larceny there must be an INDICTMENT-PARTICULARITY NEC- overt act which if not intercepted ESSARY.-[Missouri] Defendant, a by some intervening cause would city mayor and chief officer of pub- culminate in larceny, People v. Ed- lic safety, was charged with mis- wards, 79 Cal. App. 514, 249 Pac. conduct and negligence in office for 1090, 1091 (1926). The above def- having willfully and knowingly initions and limitations of attempt neglected his official duty by taking were fully satisfied by the act of no action against gambling houses the defendant in the principal case and bawdy houses which he knew when he got into the automobile, to be operating in the city. The threw the ignition switch on, and indictment omitted to include exact stepped on the starter. His design information concerning the loca- to steal the automobile was frus- tion of the houses or the names of trated by an intervening agency, their operators, merely identifying a policeman, but the turning of the the gambling houses as located "in switch certainly was an overt act, certain buildings situated upon RECENT CRIMINAL CASES certain streets and highways of can prepare his defense, if it will said city, known and designated as guide the court in deciding ques- Main Street near the intersection tions of the admissibility of evi- of Seventh Street, the exact nu- dence and in pronouncing judgment merous street locations being to in the event of conviction, and if this Grand Jury unknown," and defendant's conviction or acquittal using similar wording in describing on this charge will be a bar to an- the location of the brothels. In the other prosecution for the same of- trial court, there was a judgment fense. Mundy v. Commonwealth, sustaining a motion to quash the 161 Va. 1049, 171 S. E. 691 (1933), indictment; upon appeal by the City of Seattle v. Proctor, 183 state the judgment was affirmed. Wash. 299, 48 P. (2d) 241 (1935), The indictment was defective be- People v. Farson, 244 N. Y. 413, cause too indefinite in not describ- 155 N. E. 724 (1927). ing with reasonable accuracy the As Bishop points out in his Crim- location of any one of the houses inal Procedure, volume II, sections or describing any individuals con- 517 et seq., these requirements for nected with them. State v. Maher, certainty in the indictment are ... Mo ... , 124 S. W. (2d) 679 grounded in sound reason. Every (1939). defendant is innocent in the eyes At common law criminal indict- of the law until convicted, and ments were required to conform should be given full and fair to very strict standards both as to notice of what is charged against the form of indictment and sub- him so that he may have every stance of the charge therein. But chance to prove his innocence to by the modern interpretation, no the court. He can know only what indictment is held to be insufficient appears in the indictment, so that by reason of imperfection of form instrument should allege every fact alone, if the substantial rights of which is material to the proceed- the defendant are not prejudiced ings. Still, the indictment returned by The indictment in the instant the grand jury is required to iden- case was based upon Section 3950, tify with certainty the charge Rev. Stats. Mo. 1929, which reads, against the defendant. The sixth in part: "Every officer or person amendment to the Federal Con- holding any trust or appointment, stitution and most state constitu- who shall be convicted of any will- tions contain provisions to this ef- ful or misdemeanor in fect. Section 22 of Article II of office, or neglect to perform any the Constitution of the State of duty enjoined on him by law, Missouri applies in the instant case: where no speciil provision is made "In criminal prosecutions the ac- for the punishment of such mis- cused shall have the right . . . to demeanor, misconduct, or negli- demand the nature and cause of hence, shall be punished . .. ." the accusation . . . ." The courts But an indictment for a statutory have generally construed such con- offense which merely follows the stitutional provisions to mean that language of the statute is not good an indictment is sufficiently certain unless it charges the offense with if it so identifies the charge against precision and certainty, and leaves the defendant that he is clearly no room for doubt of the exact of- apprised of the offense alleged and fense intended to be charged. RECENT CRIMINAL CASES

Jarl v. United States, 19 F. (2d) same offense of official misconduct 891 (1927). It is permissible under has been held sufficiently definite some circumstances to allege in an which alleged that the mayor, cap- indictment that some facts are un- tain of police, and chief of police known to the grand jury, but this unlawfully conspired and agreed is only justifiable on grounds of with a certain named person, op- reasonable -which does erator of houses of ill fame, to al- not include a case such as this low the operation of houses of pros- where the grand jury leaves out titution "at various places in the facts which they could have ascer- city of Hamtramck." People v. tained and which were essential to Tenerowicz et al., 266 Mich. 276, the charge made. State v. Stowe, 253 N. W. 296 (1934). 132 Mo. 199, 33 S. W. 799 (1896). The particularity required in an Though the indictment in the pres- indictment for malfeasance in office ent case used the words of the stat- depends of course upon the nature ute it was nevertheless not suffi- of the exact misconduct charged. ciently specific, for it described the In Turner v. State, ... Ga. ... , 199 houses, knowledge of which de- S. E. 837 (1938), transferred 185 fendant is alleged to possess, in Ga. 432, 195 S. E. 431 (1938), the such ambiguous and indefinite defendant and another city police- terms that defendant could prepare man were indicted for accepting a virtually no defense. Further, be- bribe from a certain named person cause of the large and vaguely de- to refrain from arresting persons scribed area referred to in the in- unknown to the grand jurors for dictment, it would be difficult to violating the lottery law, and for plead defendant's acquittal or con- furnishing police protection to such viction in bar of future proceedings persons. It would at first glance of the same sort which might be seem that this indictment was in- based on the identical fact situation. sufficient for not naming the per- Finally, the judge and jury could sons conducting the lottery nor not tell whether the pro- specifying what kind of lottery was duced at the trial proved what the conducted; but the indictment was indictment so indistinctly alleged. rightly held sufficiently definite This case clearly falls within the since the nature of the lottery and rule requiring certainty of indict- the operator's name were merely ment, and the rule is supported incidental to the charge. here by reason as well as precedent. Another indictment was held ade- In similar cases charging mal- quate which charged a commis- feasance of public officers in neg- sioner of city works generally with lecting to act against known gam- conspiring with a certain named bling houses and houses of pros- person to willfully omit, neglect, titution, indictments have been and violate his duty as commis- held sufficient which identified the sioner. In addition, five specific houses by street and number. acts in furtherance of the conspira. State v. Castle, 75 N. J. L. 187, 66 cy were listed, with the time and Atl. 1059 (1907), People v. Herlihy, place and the name of the city's 66 App. Div. 534, 73 N. Y. S. 236 contractor upon whom, according (1901), State v. Boyd, 196 Mo. 52, to the plot, tribute was to be levied 94 S. W. 536 (1906). by the conspirators. This was held An indictment charging this sufficiently to individuate the of- RECENT CRIMINAL CASES fense charged. People v. Willis et Defendant plead guilty to a charge al., 158 N. Y. 392, 53 N. E. 29(1899). of speeding in violation of a city An unusual case in which a sur- ordinance. The court sentenced prisingly indefinite indictment was him to pay a $60 fine. However upheld as valid was Castle v. Com- the sentence was to be suspended monwealth, 232 Ky. 561, 24 S. W. entirely if the defendant left his (2d) 298 (1930). There the in- driver's license with the court for dictment charged that a constable a period of 60 days, or suspended took money from "various and in part if a public liability insur- divers persons whose names are ance policy was filed with the unknown to the grand jury" for court. On appeal to the county the purpose of preventing their court it was held: in criminal prosecution, "thereby obstructing prosecution, the court must deter- public justice, amd violating the mine the sentence and has no oath of his office." If the charge power to make it optional with the was true, this was clearly an of- defendant; a sentence must be cer- fense under the Kentucky statutes. tain and definite and, in absence of A bill of particulars was filed which statute authorizing it, must not be gave in detail a particular transac- in the alternative. Nevertheless tion in which the constable ac- the conviction was sustained, the cepted a bribe. Although the orig- county court reducing the fine to inal indictment was couched in $10 and striking off the conditions general terms, the court said it was imposed. City of Rochester v. definite enough and "the filing of Newton, 8 N. Y. S. (2d) 441 (1938). the bill of particulars did not cure The main objection was lodged a defective indictment, but only against the public liability condi- aided a good one." This is a sin- tion. Section 2188 of the Penal gular decision, however, with Code provides that on conviction which most courts would probably the court may suspend sentence or not agree. impose sentence and suspend the The courts, in order to protect execution of judgment. Under this public officers from indefinite and section, if sentence is imposed and ambiguous charges of neglect of execution of judgment is suspended, their official duty, have generally the authority of the court is con- inspected indictments very closely fined to suspension of the entire to insure that they are sufficiently sentence, not merely part of it. complete in their charges. It would Ex Parte Kuney, 5 N. Y. S. (2d) seem that groups attempting to re- 644 (1936). By permitting the form their city governments will cost of the policy to be deducted need more thatn general informa- from the fine, the court suspended tion, for the grand jury must in- only part of the sentence, con- clude in the indictment definite and trary to the rule in the Kuney case. specific instances of malfeasance in Even assuming this statute non- order to sustain a charge of mis- existent, the court admitted no conduct in office. power to require the defendant to JAMES CLEMENT. take out an insurance policy, for the legislature had not enacted a law compelling automobile liability OPTIONAL, ALTERNATIVE, AND CON- insurance. It has been often held DITIONAL SENTENCS.-[New York] that the diminution or termination RECENT CRIMINAL CASES of the sentence may not be condi- judges, as is evidenced in the in- tioned on acts which the criminal stant case. court could not directly order the Many states have abrogated the convicted defendant to perform. common law rule, authorizing al- Smith v. Barrow, 21 Ga. App. 145, ternative sentence by statute, such 94 S. E. 860 (1917); State v. Per- as, Illinois-Smith-Hurd Stats. c. kins, 82 N. C. 68 (1880); Ray v. 38, Secs. 192, 93; Montana-Rev. State, 40 Ga. App. 145, 149 S. E. 64 Codes 1921 See. 12069; Missouri- (1929). In a minority of states, Rev. Stats. 1909 Sec. 8315. Section however, trial courts are consid- 483 of the N. Y. Code of Crim. ered to have inherent power to sus- Proc. permits trial courts to pre- pend execution of sentence on any scribe "such terms and conditions reasonable condition prescribed. as they may deem best," but, "with Rayland v. State, 55 Fla. 157, 46 So. the of the defendant." No 724 (1928); Scriggs v. City of doubt Sec. 483 is typical of the lan- North Little Rock, 179 Ark. 200, 14 guage in state statutes which do S. W. (2d) 1112 (1929). Under authorize conditional sentences. most statutory systems the crim- An exception is Ill. Rev. Stats. inal courts are restricted to penal- (Cahill 1937) c. 38, Sec. 812 et seq., ties and procedure set out in the where all authorized conditions are statutes and have no inherent outlined and specifically enumer- power to suspend on condition. In ated. These statutes would appear re Mills, 135 U. S. 263, (1889); to provide trial courts with a way Medjourous v. State, 240 Ohio App. to evade the 'seductive cliches' of 146, 156 N. E. 918 (1924). the common law. The county court was greatly Perhaps the statutes like that of alarmed at the defendant being New York have given the courts given an option to fix the amount too much discretionary power. Al- of his sentence, or being permitted though the consent of the defend- alternative courses of conduct. ant is necessary for a valid sus- Sentences giving a defendant an pension on condition, the defendant option or alternative course of has little choice but to acquiesce. conduct have long been con- The fact that defendant in the prin- demned. "One of the glories of the cipal case objected and appealed common law was the fixed charac- s indeed unusual. The number of ter of its criminal punishment." 4 appeals in this type of case is quite Blackstones Comm. 378; 1 Chitty negligible, since the reward of a Cr. Law (4th Am. Ed. 184) 701. light or suspended sentence is a "Term of imprisonment or the strong inducement to the convicted amount of the fine may'not depend defendant to accede to any sug- on future contingency." See Holt gestion by the court. The Illinois K. B. 320 (1700). Per Holt, C. J., statute which authorizes only the "a fine ought to be absolute and imposition of enumerated condi- not conditional." "It is fundamen- tions may be the best solutiQn. For tal law that the sentence in a crim- without some statutory check on inal case must be definite and cer- the procedure, the defendant, who tain." Bishop, Crim. Proc. No. 1309; often cannot appeal from the order 12 Cyc. 779 and cases cited. All of and conviction once he has ac- this terminology has formed a "se- cepted the suspension (on the the- ductive cliche" that still entraps ory that the suspension is not a 140 RECENT CRIMINAL CASES

final judgment from which an ap- Despite the legalistic arguments peal can be taken-Walther v. .pro and con, the use of such de- State, 179 Ind. 565, 101 N. E. 1005 vices by the courts is an informal (1913)) is subject to the will of attempt to approximate the aims the trial court. This gives appel- of criminologists in recent years. late courts practically no oppor- The natural reaction from the fu- tunity to prevent "illegal practices" tile, cast iron, prescribed penal on the part of trial courts who treatment characteristic of the last their discretionary power. century was a movement for the Whatever may be the extent of development of individualized pe- so-called "illegal practices," they nal treatment, which was to make have been condemned as such quite the punishment fit the criminal ineffectively by the appellate rather than the punishment fit the courts. In Medjourous v. State, crime. It may be that the reaction supra, the court said, "the prac- will lead to a thorough reorganiza- tices which have grown up among tion of our system by which the trial courts in this state of remit- treatment to be accorded all of- ting parts of fines which have been fenders would be conferred on a imposed, or permitting the accused specially qualified tribunal. Until to serve less time than provided by that happens the real problem that law, or serve none at all . . . are remains is devising appropriate illegal, contrary to public policy, machinery for the administration and inimical to the public good. of these minor offenses. These practices are also a reflec- HOWARD A. MCKEE. tion upon the integrity of the courts, create a distrust in the minds of the people, establish a POWER OF COURTS TO VACATE lack of uniformity throughout the SENTENCE AFTER PARTIAL ExEcu- state in the imposition of sentence TION AND IMPOSE A NEW SENTENCE for the same offense." INCREASING THE PUNISHMENT. - However trial courts, attempting [Florida] After conviction on to effect a complete if rough jus- charge of larceny and sentence tice in situations involving non- thereunder for 6 months in the capital offenses, have tempered the county jail, petitioner by his rigidity of the direct sentencing physician came before the court power resulting from these restric- asking removal * from jail to tions "with all sorts of mitigating save petitioner's life for he was devices . . . running through the suffering from a severe attack whole course of a prosecution." of pneumonia. The court vacated See Pound, Foreword: Predictabil- sentence and discharged petitioner. ity in the Administration of Crim- At a subsequent term of court pe- inal Justice (1928) 42 Harv. L. titioner was sentenced for 2 years Rev. 297. Some of these trial court under the previous conviction. Pe- practices may be technically ille- titioner now alleges that because of gal, others are merely opportune partial execution of the first sen- utilizations of discretionary pro- tence the court had no power to cedure, much of which has sur- revoke it, and thus the sentence vived from the day when common imposed at the later date was void. law courts could grant neither an The Supreme Court held that as appeal nor a new trial. a rule a court is without power to RECENT CRIMINAL CASES

set aside a criminal judgment after Sapp, 87 Kan. 740, 125 Pac. 78 it has been partly satisfied by the (1912); Grundel v. People, 33 Colo. defendant and impose a new and 191, 79 Pac. 1022 (1906); People v. different sentence increasing the Allen, 155 Ill. 61, 39 N. E. 568, punishment, even at the same term (1895). Contra: Ex Parte, Wil- of court at which the original judg- liams, 26 Fla. 310, 5 So. 833 (1890); ment was imposed. But, where the Sylvester v. State, 65 N. H. 193, 20 sentence is vacated during the Atl. 954 (1889). Hawever, when same term of court at defendant's the pronouncement of sentence is request, and the proposition of im- unconditionally suspended for a posing a new sentence is deferred definite time and for some good to a subsequent term of court, to cause incident to the administra- which the case'is considered pend- tion of justice by the court, the ing, the court may at the subse- courts have consistently held that quent term of court impose a new sentence may be imposed at a sub- sentence, even increasing the pun- sequent term. For, in these cases, ishment, upon the original convic- the purpose is not to pardon or tion. The court then interpreted parole the defendant; but merely the representations of the physx- to enable the court to more justly cian as equivalent to a motion by exercise its power of imposing sen- the defendant to vacate the sen- tence. Miner v. United States, 244 tence and held that, as a conse- Fed. 422 (C. C. A. 3d, 1917); In Re quence of that motion, the second St. Hilaire, 101 Me. 522, 64 Atl. 882 sentence was not void and could (1906); State v. Ray, 50 Iowa 520 not be attacked by habeas corpus (1879); 25 Harv. L. Rev. 739; 12 proceedings. Smith v. Brown, 185 Col. L. Rev. 543. Thus, in the in- So. 732 (1939). The holding was stant case, as the deferring of the directly supported by another Flor- pronouncement of sentence to a ida case. Rhoden v. Chapman, 127 subsequent term was in no manner Fla. 9, 172 'So. 56 (1937). indefinite or an attempt to exercise Whether, in absence of statute, a the executive pardoning power, the court may suspend the pronounce- validity of the subsequent sentence ment of a sentence to a subsequent cannot be challenged merely be- term is a hurdle that must be cause it was imposed at a later jumped before dealing with the term. power of the court to vacate, dur- It is generally held that the ing term of imposition, a sentence judgments, decrees, and orders of partially satisfied and impose a a court are within the control of greater one at a subsequent term. the court during the term at which In cases where the pronouncement they were made and may be of the sentence is delayed for an amended or altered by the court indefinite time, or dependent on during term. 2 Co. Lit. 1st Am. the defendant's good behavior, the Ed., See. 438; State v. White, 3 N. courts have rather consistently J. M. 1016, 130 Atl. 470 (1925). To held that such suspension deprived this rule there is a well recognized the court of jurisdiction to impose limitation; namely, that a court a sentence at a later term. The may not vacate the old sentence basis of these holdings is that the and increase the punishment after court is infringing upon the execu- part of the old sentence has been tive power of pardoning. State v. executed. 44 A. L. R. 1203; 8 R. C. RECENT CRIMINAL CASES

L. 244; Wharton, Criminal Plead- structive to the object of punish- ing and Practice, 9th ed, Sec. 913. ment, namely, the reformation of The reason for this rule is often the offender, as his term of punish- said to be that once the prisoner ment would always be an uncer- begins to 'serve his sentence the tainty to him. People v. Williams, court loses its power over his des- 352 Ill. 227, 185 N. E. 598 (1933); tiny and has no more jurisdiction Com. v. Mayloy, 57 Pa. 281 (1868); over the case. Brown v. Rice, 57 Brabandt v. Com., 157 Ky. 130, 162 Me. 55 (1869); People v. Meservey, S. W. 786 (1914); 15 Minn. L. Rex. 76 Mich. 223, 42 N. W. 1133 (1889). 828; 19 Geo. L. J. 365; 22 J. C. L. Thus the old sentence is void and 591. the first one still remains in effect. It is logical to say that in those Brown v. Rice, supra; State v. Can- jurisdictions where the court is not non, 11 Ore. 312, 2 Pac. 191 (1884); allowed to VJacate a sentence par- Turner v. State, 31 S. W. (2d) 809 tially served, on motion of defend- (Tex. Civ. App. 1930); In Re Sul- ant and during the same term of livan, 3 Cal. App. 193, 84 Pac. 781 court, and impose a lighter sen- (1906). However, the underlying tence because of any of the rea- reason for this generally accepted sons above given, they would not limitation to the court's control be allowed to vacate the old sen- over its sentences is that to allow tence and impose a new one inflict- the defendant to suffer twice under ing a greater punishment, even on the same verdict and conviction motion of the defendant to vacate would be to put him in double the old sentence. But, what would jeopardy. Ex Parte Lange, 85 U. S. be the action of those courts that 163, 173 (1874). recognize that the foundation of the That double jeopardy is the only rule is the double jeopardy in fundamental reason why the court which defendant is placed, and that cannot set aside its judgment after have no statutes on the subject? partial execution was also pointed Would they, as the Florida court out in a later United States Su- did in the instant case, hold that preme Court decision in which the the defendant had waived his right court held that a court could va- not to be placed in double jeopardy cate a sentence and mitigate the by moving for the old sentence to punishment after partial execution be vacated; and, consequently, the of the original sentence. United court, under its common law power States v. Benz, 282 U. S. 304, 307 to alter sentences during term time, (1931); Note 19 Geo. L. J. 365; could impose a sentence inflicting Note 15 Minn. L. Rev., p. 828. greater punishment on the defend- However, many states have also ant? denied their courts the power to In the case of Emerson v. Boyles, mitigate punishment after partial 170 Ark. 621, 280 S. W. 1005 (1926), execution of the sentence, on three the defendant, after partial execu- different grounds, namely: (1) it tion, was by order of the court, is an infringement on the pardon.- and with full approval and on mo- ing power of the executive; (2) it tion of defendant, to be released is prohibited by statutory restric- on his good behavior. The Su- tions; (3) the practice of allowing preme Court of the state held that the court to alter a sentence after the trial court had no power to partial execution would be de- authorize the release: "for the rea- RECENT CRIMINAL CASES 143 son that to permit the judgment to motion to vacate the sentence be be set aside and another sentence considered as a waiver of that to be imposed some time in the fu- right? The increasing of the sen- ture, after the first sentence had tence, that is the infliction of the been partially executed, would, in new increased sentence, is the effect put the defendant in jeopary double jeopardy, not the vacating twice for the same offense." Here, of the old sentence. Benz v. United it may be questioned although States, supra; Ex Parte Lange, su- whether the mere putting the de- N. C. 587 fendant in a position where his pra; In Re Brittain, 93 it seems to punishment may later be increased (1885). Consequently, is to place him in double jeopardy, be a frank contradiction of facts it is clear that the court does not, in to contend that a person has any manner, consider the consent waived his right not to be placed in of the defendant to the vacating of double jeopardy by moving for the original sentence as a waiver a sentence to be vacated when it is of his right not to be placed in not the vacating of the sentence double jeopardy. that constitutes the double jeop- However, assuming that one may ardy, but the later imposition of waive his right not to have pun- the new sentence increasing the ishment already partly executed punishment. be increased by the court, can a JOHN OVERBECK.