SENTENCE. A judgment, or judicial dec laration made by a judge in a cause. The term judgment is more usually applied to civ il, and sentence to criminal, proceedings.
Sentences are final, when they put an end to the case ; or interlocutory, when they settle only some incidental matter which has arisen iu the course of its progress. See Aso & Man. Inst. b. 3, t. 8, c. 1.
A. sentence exceeding the term allowed by law will he reversed upon certiorari; White v. Com., 3 Brews. (Pa.) 30. Under some circumstances a sen tence may be suspended after conviction; State v. Addy, 43 N. J. L. 113, 39 Am. Rep. 547 ; Com. v. Dowdican's Bail, 115 Mass. 133 ; but not indefinitely ; Ex parte Bugg, 163 Mo. App. 44, 145 S. W. 831. But a single sentence exhausts the power of the court to punish the offender, after the term is ended or the judgment has gone into operation ; Ex parte Lange, 18 Waii. (U. S.) 163, 21 L. Ed. 872; Com. v. Foster, 122 Mass. 317, 23 Am. Rep. 326 ; Com. v. Mayioy, 57 Pa. 291.
The court may set a day for the execu tion of a prisoner after the time originally fixed has elapsed. The prisoner may be held in confinement after the first day fixed for execution has passed ; In re Cross, 146 U. S. 271, 13 Sup. Ct. 109, 36 L. Ed. 969. Upon the affirmance of a judgment, sentencing a pris oner to death, there is nothing which requires that he shall be sentenced anew by the trial court; Schwab v. Berggren, 143 U. S. 442, 12 Sup. Ct. 525, 36 L. Ed.'218. See ExEcunow.
When a sentence different from that au thorized by law has been imposed and the judgment has been reversed far that error, and the cause remanded to the trial court with instructions to proceed therein according to law, the trial court resumes jurisdiction of the cause at the point where the error supervened and may resentence the defend ant and impose the penalty provided by law, although part of the void sentence has been executed; U. S. v. Harman, 68 Fed. 472.
Where a court has jurisdiction of the per son and the offence, the imposition of a sen tence in excess of what the law permits does not render the authorized portion of the sen tence void, but only such part as may be in excess; U. S. v. Pridgeon, 153 U. S. 48, 14 Sup. Ct. 746, 38 L. Ed. 631; State v. Wil liams, 77 Mo. 310; so, on a plea of guilty, if the court had authority to impose the pun ishment actually adjudged on a conviction of a higher grade of the offence; In re Pas chal, 56 Kan. 123, 42 Pac. 373.
Where the judgment on the first count is reversed and there is arrest of judgment un der the second, a term of imprisonment un der the third may be made to commence on the day fixed for the first count ; Blitz v. U. S., 153 U. S. 308, 14 Sup. Ct. 924, 38 L. Ed. 725.
Where a sentence is imposed after a gen eral verdict on an indictment containing sev eral counts, some of which were subsequently found bad, such sentence will be sustained, where it is no heavier than what might prop erly have been imposed upon the good counts; Haynes v. U. S., 101 Fed. 817, 42 C. C. A. 34.
Failure in the sentence to name the crime for which the prisoner was sentenced may be supplied by reference to the rest of the record; Pointer v. U. S., 151 U. S. 396, 14 Sup. Ct. 410, 38 L. Ed. 208.
Statutes providing for a severer punish ment when a criminal is convicted of a sec ond•or third offence are not in violation of the constitutional provision that no one shall be twice put in jeopardy for the same offence; Moore v. Missouri, 159 U. S. 673, 10 Sup. Ct. 179, 40 L. Ed. 301. The doctrine is that the subsequent punishment is no for the first offence, but for persistence in crime; Peo ple v. Stanley, 47 Cal. 113, 17 Am. Rep. 401; Kelly v. People, 115 III. 583, 4 N. E. 644, 56 Am. Rep. 184; Sturtevant v. Corn., 158 Mass. 598, 33 N. E. 648; Ingalls v. State, 48 Wis. 647, 4 N. W. 785. For the same reason, they are not open to the objection that they are ex post facto, even when the prior convic tions occurred before the passage of the act imposing the additional penalty ; Ex parte Gutierrez, 45 Cal. 429; Com. v. Graves, 155 Mass. 163, 29 N. E. 579, 16 L. R. A. 236; Blackburn v. State, 50 Ohio St. 428, 36 N. E. 18; Rand v. Com., 9 Gratt. (Va.) 738. Such statutes cannot apply to the case of a convic tion for an offence committed after that for which the prisoner is on trial, but for which he is first tried; Rand v. Com., 9 Gratt. (Va.) 738. The indictment must allege that the de fendant had been previously convicted, sen tenced, and imprisoned (once or twice, as the case may be) in some penal institution for felonies (as such penalties are usually only prescribed for felonies or penitentiary of fences), describing each separately ; Sturte vant v. Corn., 158 Mass. 598, 33 N. E. 648; State v. Austin, 113 Mo. 538, 21 S. W. 31; Blackburn v. State, 50 Ohio St. 428, 36 N. E. 18. As a general rule the courts have no discretion in the matter of imposing sentence under the habitual criminal acts; Sturtevant v. Com., 158 Mass. 598, 33 N. E. 648; Black burn v. State, 50 Ohio St. 428, 36 N. E. 18. It is not necessary, unless required by stat ute, that the subsequent convi, tion or convictions should be for the same identi cal offence or character of offence. It is sufficient if the accused has been convicted of any one of the offences of the grade named; Kelly v. People, 115 Ill. 583, 4 N. E. 644, 56 Am. Rep, 184. The previous offences must have been penitentiary offences, and not merely made so by repeated convictions for what would otherwise have been mis demeanors ; Stover v. Com., 92 Va. 780, 22 S. E. 874.