In directing that the judgment of the circuit court be quashed and that appellee be remanded to the penitentiary to serve the remainder of his sentence, the majority give as their reason for so ordering "that to permit judgment to be set aside, and another sentence to be imposed sometime in the future, after the first sentence had been partially executed, would, in effect, put the defendant in jeopardy twice for the same offense." This solicitude for appellee's welfare is not only misplaced, but is worse than wanted. The majority take no account of the fact that appellee not only consents to the order quashed, but is struggling desperately to have it enforced. The issue in the present appeal is, not whether appellee should be safeguarded against the possibility of being twice punished for the same offense, but is, shall this court compel the full execution of a sentence which the trial court has adjudged should be suspended?
It will be remembered that the order suspending appellee's sentence was rendered at the same term of the court at which the judgment sentencing him to the penitentiary was rendered, and the majority have held that *Page 631 the fact that appellee had been confined in the penitentiary deprived the court of the jurisdiction to suspend the sentence, even during the same term of court. It follows, therefore, that, if a defendant should be convicted, and sentence pronounced, and the defendant committed to prison pursuant to the sentence, the trial court loses all control or power to correct any error which might later be made to appear. For instance, newly-discovered evidence might be found which would make it appear certain that the defendant had been improperly convicted. The trial court has been made impotent in such cases to grant relief, even though the evidence was newly-discovered before the adjournment of the term at which the conviction was had.
In the case of Williams v. State, 125 Ark. 289, we held that "there seems to be no question about the power of the court to set aside a judgment of conviction before the convict has begun serving his sentence, nor is there any doubt that the court has the power at any time during the term to set aside a judgment for the correction of errors." This broad statement of the power of the trial court to set aside a judgment of conviction to correct errors at the same term at which the judgment was rendered does not contain the limitation now placed upon the courts that this may be done provided the defendant has not commenced his sentence. Nor was any such limitation upon the power of the trial court recognized in the case of Holden v. State, 156 Ark. 521, where it was said: "There is no authority in law for the trial court to suspend the execution of a judgment of conviction in a criminal case from term to term. The court, during the term, to be sure, has power over its judgment and could set aside the same, but at the close of the term the conviction and judgment and sentence become final, and any order suspending the execution of same, when the defendant is in the presence of the court or in the custody of the sheriff, in the absence of a statute authorizing it, is void. The law contemplates that, upon a verdict of guilty, *Page 632 unless such verdict is set aside and a new trial granted, the court shall render a judgment of sentence which, in the absence of a statute duly authorizing its suspension, must be duly executed. See 3203-4, Crawford Moses' Digest." of the language quoted above more will later be said. To the same effect, see the cases of Killian v. State, 72 Ark. 137; Ashley v. Hyde and Goodrich,6 Ark. 92; Wells Fargo Co. v. W. B. Baker Lbr. Co.,107 Ark. 415. In the case last cited it was held (to quote the syllabus) that "where the trial court overrules defendant's motion to set aside a default judgment rendered against him, the court retains jurisdiction, during the term, to set aside the judgment, even though an appeal has been prayed by defendant, and granted, so long as the appeal remains unperfected." Many other cases in our reports to the same effect could be cited.
In the case of State v. Butler, 18 A. 1105, the Court of Appeals of Maryland considered a statute of that State providing that "no judgment upon, any indictment for any felony or misdemeanor shall be stayed or reversed for any matter or cause which might have been the subject of demurrer to the indictment." The court there said: "But we do not think that either this statute or the cases cited in any manner modify or limit the long-established principle that courts have power to set aside or change their judgments during the term at which they are entered. It is not necessary to cite numerous authorities to support this doctrine. In his work on Judgments (section 90) Mr. Freeman says: `The power to vacate judgments was conceded by the common law to all its courts. This power was exercised in a great variety of circumstances, and subject to various restraints. The practice in the different States is in many respects so conflicting that few rules can be laid down as universally applicable. One rule is, however, undoubted. It is that the power of a court over its judgments, during the entire term at which they are rendered, is unlimited.' The full extent of the control of courts over their own judgments in both civil and criminal cases, *Page 633 during the term, is fully recognized by this court in the case of Seth v. Chamberlaine, 41 Md. 194, in which Judge Alvery, delivering the opinion of the court, said: `The principle * * * is of every day application, in the practice of the courts of this State and elsewhere, that the court retains power over its own judgments and orders, in both civil and criminal cases, during the term at which they are entered or made, and will, during that time, set them aside, or change or modify them, as circumstances may require.'" In that case it was held (to quote a syllabus) that "the court can so set aside a judgment sentencing defendant to pay a fine or stand committed, though the judgment may have been partly executed, by commitment and service for part of the time."
In the case of In re John Brittain, 93 N.C. 587, the defendant had been sentenced to a year in the penitentiary, and had been confined for a period of eight days under his sentence, when he was ordered back into court at the same term and the unexpired portion of the sentence was remitted. The power of the trial court was questioned, but this power was upheld by the Supreme Court of North Carolina, and in upholding this power it was said: "It would be very extraordinary if this form of mitigating a punishment during the sitting in which it was imposed, was to be denied the court, and thus the sentence become irrevocable. Cannot the judge remit part or even all of a fine? If so, is his authority to reduce the term of confinement to be denied?"
The majority cite 16 C.J. 1314. In the section of the text appearing at that page appears the following statement: "It has been held, however, that where a sentence has been partly executed it may be revised and another in diminution or mitigation substituted for it during the term." The cases cited in the note to the text sustain the statement made.
The majority quote from 12 Cyc. 783, in which the statement appears that "where the prisoner has paid his fine or his imprisonment has begun, the court has no power to recall him to revoke his former sentence and *Page 634 impose one which inflicts a greater punishment." As we have pointed out, there was no effort here to impose a greater punishment. On the contrary, the obvious purpose of the court was to mitigate the punishment.
In volume 3 Wharton's Criminal Procedure (10th ed.) 1853, it was said: "As a general practice, the sentence, when imposed by a court of record, is within the power of the court during the session in which it is entered, and may be amended at any time during such session, provided a punishment already partly suffered be not increased."
Section 247 of the chapter on Criminal Law, 8 R.C.L., page 244, reads as follows: "Where a judgment has been fully satisfied by the defendant, the trial court has no power to amend it by increasing the punishment after the term at which the judgment was rendered, or even during the same term. The ends of justice will not be served by permitting the State, after the sentence of the law has been discharged, to open the case for any purpose, and least of all to insert an additional penalty. To permit this would be like punishing the delinquent the second time for the same offense. Thus it has been held that, where a court has imposed a fine and imprisonment when the statute confers power only to punish by fine or imprisonment, and the fine has been, paid, the court cannot, even during the same term, modify the judgment by imposing imprisonment instead of the former sentence, and, the judgment having been executed so as to be a full satisfaction of one of the alternative penalties of the law, the power of the court as to that offense is at an end. The rule seems to be well established that the trial court is without power to set aside a criminal judgment after it has been partly satisfied by the defendant, and impose a new or different judgment increasing the punishment, even at the same term of court at which the original judgment was imposed. And of course a judgment which has been partly satisfied by the defendant cannot be set aside by the trial court, and a new judgment increasing the *Page 635 punishment imposed, after the term of court at which the first judgment was rendered."
In volume 25 A.E. Ency. of Law (2d ed.) page 315, it is said: "Ordinarily the trial court may, at any time during the term at which the sentence was rendered and before execution has begun, amend or vacate the sentence, and render a new sentence in accordance with law. As a general rule, where the defendant has executed or entered upon the execution of a valid sentence, the court cannot, even during the term at which the sentence was rendered, set it aside and render a new sentence. But it has been held that the court may, at any time during the term at which the sentence was rendered, modify it by remitting part of the punishment, even though its execution has already commenced."
As is said by the majority, the Supreme Court of the United States, in the case of Basset v. United States, 9 Wall. 38, held that it is competent for the court, for good cause, to set aside, at the same term at which it was rendered, a judgment of conviction on confession, though the defendant had entered upon the imprisonment ordered by the sentence, and I submit there is nothing in the later opinion of the same court in Ex parte Lange, 18 Wall. 163, which impairs the authority of that case, and certainly not as applied to the facts of this case. The quotation from that opinion found in the majority opinion in the instant case speaks for itself.
The texts from which I have quoted rather extensively cite a number of annotated cases which themselves cite a very large number of other cases, and it would be profitless to review these numerous cases. It may be conceded that there is a conflict in the authorities, but, in view of this conflict, it would be best, in my opinion, to follow the Supreme Court of the United States, and especially so as we have not heretofore decided the exact point in issue.
Thus far I have considered the question in issue as a common-law principle, but there is a statute which, in my opinion, should be taken into account, but which *Page 636 the majority appear to regard as inapplicable. This is Act 76 of the General Acts of 1923 (Acts 1923, page 40), entitled, "An act to authorize circuit judges to suspend sentences upon certain conditions and for other purposes." This act has a history which should not be disregarded in interpreting it.
The constitutionality of this act is conceded by the majority. If it were questioned, the annotator's note to the case of State of Washington v. Starwich, 206 P. 29, would show that such acts have generally been held to be constitutional. The most common attack upon such legislation has been that it encroached upon the power of the Governor to exercise the pardoning power, but the cases cited by the annotator in 26 A.L.R. 393, where the case of Washington v. Starwich appears, show very conclusively that the legislation is not open to that objection.
But to return to the history of this act. In the case of Holden v. State, supra, from which I have already quoted, we said: "There is no authority in law for the trial court to suspend the execution of a judgment of conviction in a criminal case from term to term."
This opinion was handed down on January 22, 1923. The General Assembly was in session at the time this opinion was rendered, and the bill which became act 76 of the Acts of 1923, supra, was immediately passed, and was approved by the Governor February 9, 1923. The obvious purpose of the act was to give the courts a power which we had just held they did not possess. By this act it was provided that whenever a plea of guilty shall have been accepted, or a verdict of guilty shall have been rendered, the judge trying the case shall have authority, if he deem it best for the defendant and not harmful to society, to postpone the pronouncement of final sentence and judgment, upon, such conditions as he shall deem proper and reasonable as to the probation of the person convicted, the restitution of the property involved, and the payment of the costs of the case.
The first word appearing in this act is the adverb of time — "Whenever." A new power was conferred upon *Page 637 courts, to be exercised "whenever" the courts saw proper. This word should probably be limited to any period of time while the term of court continues at which the plea of guilty was entered or the verdict of guilty was rendered, but it occurs to me that it is a limitation of the new power there given to circuit courts say that the beneficent provisions of the act may not be extended to any one simply because he has served some portion of his sentence, and certainly is this true when the person convicted waives any right — if such it may be called — growing out of the fact that he has suffered a portion of his sentence.
I think therefore that the judgment of the court below should be affirmed, and especially so as we are not advised by the record before us as to the reasons moving the court to the action taken.
I am authorized to say that Mr. Justice HUMPHREYS concurs in the views here expressed.