It was urged by the Attorney General, that case is distinguishable from all former cases, in this particular , that in this case the convict has not yet suffered any thing from the erroneous judgment, as he has not yet completed his sentence under the first judgment. The term of imprisonment under the second sentence not having yet commenced, it is contended that the prisoner can now be sentenced, either in this court, or in the court of common pleas, and that on reversal of this judgment, such judgment may now be rendered as the court below should have rendered. But on the best consideration we can give it, we perceive no substantial ground to distinguish this from the former cases, where judgments have been reversed, in which it was held that no new judgment could be given by this court.
In the first place, it is very clear, and indeed it is conceded, that the judgment is erroneous in imposing a longer sentence, in a case of simple larceny, than the law would warrant. Hopkins v. Commonwealth, 3 Met. 460. The judgment, therefore, must be reversed.
What further can this court do ? It has already been held, that it is not competent for the court to reverse in part where the judgment is entire, nor to enter up such judgment as the court below ought to have entered. The fact, that the convict has yet suffered no part of the, sentence on the erroneous judgment, does not vary the case in principle. If one has suffered a part of the sentence awarded by an erroneous judgment, it may add weight to the reasons why a new judgment should not be pronounced, if it were a new and original question; but it is not the legal reason on which the rule rests, and that rule is now established by precedent and practice. Shepherd v. Commonwealth, 2 Met. 419. Whatever other remedy the Commonwealth may have, we think it is not competent for this court to call the party in and pronounce a new sentence, nor to remit the case to the court of common pleas.
Judgment reversed.