Murphy was tried in a state court of Massachusetts on an
indictment charging him with embezzlement, was convicted, and was
sentenced to imprisonment for a term, one day of which was to be in
solitary confinement and the rest at hard labor. He remained in
confinement for nearly three years, and then sued out a writ of
error, and the judgment was reversed on the ground that the
sentence was unconstitutional. The case was then remanded to the
court below to have him resentenced, which was done. Before
imposing the new sentence, the court said that as he had already
suffered one term of solitary confinement, the court would not
impose another if a written waiver by the prisoner of the provision
therefor were filed. He declined to file such a waiver, and the
sentence was accordingly imposed. Upon his taking steps to have the
sentence set aside,
held that his contention in that
respect was unavailing.
Plaintiff in error, a citizen of the commonwealth of
Massachusetts and of the United States, was tried in the Superior
Court of Massachusetts on an indictment which charged him in
sixty-four counts with the embezzlement of different sums of money
on different days between July 19, 1892, and November 29, 1893,
contrary to the provisions of section forty of chapter 203 of the
Public Statutes of Massachusetts; was found guilty, and on May 29,
1896, was sentenced under chapter 504 of the Statutes of 1895 to
imprisonment in the state's prison of the commonwealth at Boston
for the term of not less than ten nor more than fifteen years, one
day thereof to be in solitary confinement and the residue at hard
labor, and on that day, in execution of said sentence, was
committed to that prison. He remained in solitary confinement for
one day and in the prison continuously from May 29, 1896, to
January 7, 1899.
Page 177 U. S. 156
On June 8, 1898, he sued a writ of error out of the Supreme
Judicial Court of Massachusetts, and on January 6, 1899, that court
reversed the sentence of the superior court on the ground that the
statute of 1895, c. 504, was unconstitutional so far as it related
to past offenses, and remanded the case to the superior court under
Public Statutes, c. 187, § 13, to be resentenced according to the
law as it was when the offenses were committed, and before the
statute under which he had been sentenced took effect. 172 Mass.
264.
January 7, 1899, he was brought before the superior court
pursuant to that direction, and resentenced according to the
provisions of Public Statutes, c. 203, § 20, and Public Statutes,
c. 215, § 23, the sentence being to the state's prison for nine
years, ten months, and twenty-one days, the first day thereof to be
in solitary confinement and the residue at hard labor. Before
imposing this sentence the court stated to Murphy's attorney that
as Murphy had already suffered one term of solitary confinement for
the offenses for which he was now to be sentenced, it would prefer
not to sentence to solitary confinement, and that it would not do
so, if a written waiver by the prisoner of the provision therefor
were filed; but the attorney did not feel justified in filing such
a waiver. Murphy duly excepted to the sentence last imposed, and
requested that all his rights be reserved. Exceptions having been
allowed, the case was carried on error to the Supreme Judicial
Court, which overruled them. 54 N.E. 860. This writ of error was
then sued out.
MR. CHIEF JUSTICE FULLER delivered the opinion of the Court.
The specification of errors in the brief of counsel is as
follows:
"The contention of the plaintiff in error is that the sentence
under which he is now held puts him twice in jeopardy,
Page 177 U. S. 157
and that such double jeopardy abridges his privileges and
immunities as a citizen of the United States, and deprives him of
his liberty without due process of law."
Laying out of view the suggestion that the immunity from double
jeopardy or double punishment of a citizen of Massachusetts, in
Massachusetts, is an immunity possessed by him as a citizen of the
United States, as contradistinguished from a citizen of
Massachusetts, we inquire whether any law of Massachusetts abridges
such an immunity, and whether that or any other action of that
commonwealth deprives plaintiff in error of his liberty without due
process of law. If there be no such law, and if he is suffering no
such deprivation, we need not be curious in explanation of the
particular ground of our exercise of jurisdiction.
The statutes of Massachusetts have provided since 1851 that
"when a final judgment in a criminal case is reversed by the
Supreme Judicial Court on account of error in the sentence, the
court may render such judgment therein as should have been
rendered, or may remand the case for that purpose to the court
before which the conviction was had."
Acts 1851, c. 87; Pub.Stat. c. 187, § 13.
In this case, it was on account of error in the sentence as
originally imposed that that sentence was set aside. All the
proceedings prior thereto stood unimpugned, and the superior court
merely rendered the judgment which should have been rendered
before. And this was done under the statute by direction of the
Supreme Judicial Court, whose interposition had been invoked by
plaintiff in error.
The legal effect of the statute was to make it a condition of
the bringing of writs of error in criminal cases that, if the error
was one in the award of punishment only, that error should be
corrected, and, as remarked by Chief Justice Shaw, this did not
disturb the fundamental principles of right.
Jacquins v.
Commonwealth, 9 Cush. 279. Indeed, in many jurisdictions it
has been held that the appellate court has the power, when there
has been an erroneous sentence, to remand the case to the trial
court for sentence according to law.
Reynolds v. United
States, 98 U. S. 145,
98 U. S. 168;
In re Bonner, 151 U. S. 242;
Henderson
Page 177 U. S. 158
v. People, 165 Ill. 607;
Beale v.
Commonwealth, 25 Pa. 11. And we have repeatedly decided that
the review by an appellate court of the final judgment in a
criminal case, however grave the offense of which the accused is
convicted, is not a necessary element of due process of law, and
that the right of appeal may be accorded by the state to the
accused upon such conditions as the state deems proper.
McKane
v. Durston, 153 U. S. 684;
Andrews v. Swartz, 156 U. S. 272;
Kohl v. Lehlback, 160 U. S.
297.
As this statute was reasonable, was intended for the benefit of
the accused, as well as of the community, and was entirely within
the admitted powers of the state, we are unable to see that it is,
in itself, open to attack as being unconstitutional, and as this
plaintiff in error set the proceedings in question in motion, and
they conformed to the statute, we do not perceive how they can be
regarded as otherwise than valid.
In prosecuting his former writ of error, plaintiff in error
voluntarily accepted the result, and it is well settled that a
convicted person cannot by his own act avoid the jeopardy in which
he stands, and then assert it as a bar to subsequent jeopardy.
United States v. Ball, 163 U.
S. 662, illustrates the rule. There, Millard F. Ball,
John C. Ball, and Robert E. Boutwell had been indicted, in the
Circuit Court of the United States for the Eastern District of
Texas for the murder of one Box, and on trial, Millard F. Ball had
been acquitted and discharged, and John C. Ball and Boutwell
convicted and sentenced to death. The condemned having brought the
case here on error, it was held that the indictment was fatally
defective, and the judgment was reversed and the cause remanded
with a direction to quash the indictment.
Ball v. United
States, 140 U. S. 118. The
mandate went down, the indictment was dismissed, and a new
indictment was returned against all three defendants. To this
Millard F. Ball filed a plea of former jeopardy and former
acquittal, and John C. Ball and Boutwell filed a plea of former
jeopardy by reason of their trial and conviction upon the former
indictment and of the dismissal of that indictment. Both these
pleas were overruled, defendants pleaded not guilty, were
convicted, and sentenced to death.
Page 177 U. S. 159
On their writ of error, this Court held that a general verdict
of acquittal upon the issue of not guilty to an indictment
undertaking to charge murder, and not objected to before the
verdict as insufficient in that respect, is a bar to a second
indictment for the same killing. MR. JUSTICE GRAY, delivering the
opinion, said:
"An acquittal before a court having no jurisdiction is, of
course, like all the proceedings in the case, absolutely void, and
therefore no bar to subsequent indictment and trial in a court
which has jurisdiction of the offense.
Commonwealth v.
Peters, 12 Met. 387; 2 Hawk. P. C. c. 35, § 3; 1 Bishop's
Crim.Law § 1028. But although the indictment was fatally defective,
yet, if the court had jurisdiction of the cause and of the party,
its judgment is not void, but only voidable by writ of error, and
until so avoided, cannot be collaterally impeached. If the judgment
is upon a verdict of guilty, and unreversed, it stands good, and
warrants the punishment of the defendant accordingly, and he could
not be discharged by a writ of habeas corpus.
Ex Parte
Parks, 93 U. S. 18. If the judgment is
upon an acquittal, the defendant indeed will not seek to have it
reversed, and the government cannot.
United States v.
Sanges, 144 U. S. 310."
The judgment was reversed as to Millard F. Ball, and judgment
rendered for him upon his plea of former acquittal.
But as to John C. Ball and Boutwell, it was ruled that the
circuit court rightly overruled their plea of former jeopardy, and
it was said:
"Their plea of former conviction cannot be sustained, because
upon a writ of error, sued out by themselves, the judgment and
sentence against them were reversed, and the indictment ordered to
be dismissed. How far, if they had taken no steps to set aside the
proceedings in the former case, the verdict and sentence therein
could have been held to bar a new indictment against them need not
be considered, because it is quite clear that a defendant who
procures a judgment against him upon an indictment to be set aside
may be tried anew upon the same indictment, or upon another
indictment, for the same offense of which he had been convicted.
Hopt v. Utah, 104 U. S. 631,
110 U. S.
110 U.S. 574,
114 U. S. 114 U.S. 488,
120 U. S. 120 U.S. 430;
Regina v. Drury,
Page 177 U. S. 160
3 Cox Crim.Cas. 544, 3 Car. & Kirw.193;
Commonwealth v.
Gould, 12 Gray 171."
Tested by these rulings, plaintiff in error's original sentence
was not void, but voidable, and if the sentence had been complied
with, he could not have been punished again for the same offense.
Commonwealth v. Loud, 3 Met. 328. But as the original
sentence was set aside at his own instance, he could not allege
that he had been in legal jeopardy by reason thereof.
In
Ex Parte
Lange, 18 Wall. 163, Lange had been found guilty of
an offense which was punishable by imprisonment or fine, but the
circuit court sentenced him to imprisonment and fine. He paid the
fine, and thereafter the circuit court vacated the former judgment
and sentenced him again to imprisonment only. It was held that it
was a fundamental principle that no man could be twice punished by
judicial judgments for the same offense, and that when a judgment
had been executed by full satisfaction of one of the alternative
penalties of the law, the court could not change the judgment so as
to impose another. The present case does not fall within that
decision, for here an erroneous judgment was vacated on the
application of the accused; the original sentence had not been
fully satisfied, and the second sentence was rendered in pursuance
of the applicable statute.
We repeat that this is not a case in which the court undertook
to impose
in invitum a second or additional sentence for
the same offense or to substitute one sentence for another. On the
contrary, plaintiff in error availed himself of his right to have
the first sentence annulled so that another sentence might be
rendered. And as the decision which he sought and obtained involved
the determination that he had been improperly sentenced under
chapter 504 of the Statutes of 1895, providing for so-called
indeterminate sentences, but should have been sentenced under
antecedent statutes, which differed from that, it followed that the
second sentence must be a new sentence to the extent of those
differences, and might turn out to be for a longer period of
imprisonment.
Chapter 504 of the Statutes of 1895 provided for the
establishment by the court of a maximum and minimum term of
Page 177 U. S. 161
imprisonment, and for a permit to the convict to be at liberty
after the expiration of the minimum term, some changes being made
in this regard by chapter 371 of the Statutes of 1898. Section 20
of chapter 222 of the Public Statutes, in force when the offenses
charged were committed, provided for certain deductions to be made
for good behavior. These and other statutes bearing on the subject
are fully set forth and examined in
Murphy v.
Commonwealth, 172 Mass. 264. And it is insisted that, under
the present sentence, even if the prisoner received the maximum
deduction, he cannot be released as soon as he might have been
released under the original sentence, and that, moreover, he cannot
receive as large deductions under this sentence as he might have
received if it had been pronounced in the first instance.
But we agree with the Supreme Judicial Court in the opinion
that, even if this were so, it would make no difference in
principle so far as the validity of the second sentence was
concerned.
In
Jacquins' Case, 9 Cush. 279, the Supreme Judicial
Court, in lieu of the prior sentences, sentenced the defendant to
certain years of imprisonment, "the term to be computed from the
time when the first sentence commenced its operation."
In the case at bar, the accused was originally sentenced to
imprisonment for the term of not less than ten nor more than
fifteen years. This being set aside, and the superior court, being
manifestly of opinion that imprisonment for twelve years and six
months was the punishment demanded under the circumstances,
deducted from twelve years and six months two years, seven months,
and nine days, which he had already served, and sentenced him to
nine years, ten months, and twenty-one days. As the original
sentence had been vacated on the application of the accused, it is
clear that if the second sentence were productive of any injustice,
the remedy was to be obtained in another quarter, and did not rest
with the court.
The superior court, being obliged to render a specific sentence,
deducted the time Murphy had served, notwithstanding the case
really occupied the same posture as if he had sued out his writ of
error on the day he was first sentenced, and the mere fact that, by
reason of his delay in doing so, he had served a
Page 177 U. S. 162
portion of the erroneous sentence could not entitle him to
assert that he was being twice punished. Perhaps the court was the
more moved to do this because, six months after Murphy had been
sent to the state prison, the Supreme Judicial Court indicated in
Commonwealth v. Brown, 167 Mass. 144, that the
indeterminate sentence act might be applicable to convictions for
offenses committed prior to its passage, although the question was
not definitely presented and disposed of, and then to the contrary,
until raised on Murphy's writ of error. 172 Mass. 264. But however
that may be, the plea of former jeopardy or of former conviction
cannot be maintained because of service of part of a sentence
reversed or vacated on the prisoner's own application.
And so as to the infliction of one day's solitary confinement.
The Massachusetts statutes provide that where the punishment of
imprisonment in the state prison is awarded, solitary confinement
not exceeding twenty days at a time shall form part thereof. This
requirement was complied with here by the infliction of one day.
This was part of the sentence, but not, in itself, a distinct and
separate punishment, and when the sentence was vacated, the second
sentence necessarily contained some solitary confinement as part of
the imprisonment. Apparently this might have been dispensed with by
the consent of the convict, but this he refused to give.
In
People ex Rel. Trezza v. Brush, 128 N.Y. 529, 536,
Trezza had been sentenced to death, and prosecuted an appeal to the
Court of Appeals of New York, pending which he was taken to the
state prison and detained in close confinement. He applied for the
writ of habeas corpus on the ground that he had been once punished,
which was denied. The Court of Appeals held that, by the statute,
an appeal from a conviction in a capital case stayed the judgment
of death only, and not that part of the judgment which provided for
the custody of the defendant between his removal to the state
prison and his execution, and Andrews, J., speaking for the Court,
said:
"It not infrequently happens that the execution of a sentence to
imprisonment continues notwithstanding an appeal. The convict, if
he obtains a reversal of the judgment and is again convicted on a
second trial, may be sentenced to a new term of imprisonment,
Page 177 U. S. 163
and the court is not bound to regulate the second sentence in
view of the fact that the convict has already suffered imprisonment
under the first sentence. The resentence in the present case was
rendered necessary by reason of the fact that Trezza, by his own
act in his own interest, had by his appeal prevented the execution
of the death penalty at the time fixed by the first sentence."
Trezza also applied to the Circuit Court of the United States
for the Southern District of New York for a writ of habeas corpus,
which the court refused to grant, and its order was affirmed by
this Court on appeal.
142 U. S. 142 U.S.
160.
In
McElvaine v. Brush, 142 U.
S. 155, McElvaine had been sentenced to death, and the
judgment was reversed and a new trial granted. He was again
convicted and sentenced, and the judgment affirmed on appeal. 125
N.Y. 596. McElvaine presented his petition for habeas corpus to the
circuit court, which was denied, and the case brought to this
Court. The order was affirmed, and we said, among other things,
that
"so far as the confinement had taken place under the first
sentence and warrant, that resulted from the voluntary act of the
petitioner in prosecuting an appeal."
In
Brown v. New Jersey, 175 U.
S. 172, it was reiterated that
"the state has full control over the procedure in its courts,
both in civil and criminal cases, subject only to the qualification
that such procedure must not work a denial of fundamental rights,
or conflict with specific and applicable provisions of the federal
Constitution."
We find no such denial or conflict in this case. As we have
said, plaintiff in error must be deemed to have sought a correction
of the original erroneous judgment, and held to abide the
consequences. He seems to have then supposed that it might be
decided that the prior statutes were repealed by the act of 1895,
and that, as he could not be sentenced under that act, he might be
discharged altogether. In this it turned out that he was mistaken,
as the Supreme Judicial Court adjudged that the prior statutes were
still in force so far as he was concerned, and we concur with that
court in holding that his present contention is equally unavailing
to effect his release.
Judgment affirmed.