Hart, J.,
(after stating the facts). The first inquiry-presented for our consideration is the nature and extent of the power of the circuit court over its own judgments in vacating them during the same term at which they are rendered. The circuit court, in ordering the release of Boyles, proceeded on the theory that it is competent for the court to modify a judgment, in either a civil or criminal case, during the term at which the'judgment was rendered. It is a rule of universal application that, so long as a judgment or sentence of a court remains unexecuted or is not put in operation, it is, in contemplation of law, in the breast of the presiding judge of the court, and is subject to revision and alteration during- the same term at which it is rendered.
In the case at bar the circuit court set aside its judgment at the same term at which it was rendered, hut it was after the defendant had served a substantial part of the sentence. J. M. Boyles entered a plea of guilty to the crime of unlawfully making- mash,' and was sentenced to serve a year in the State Penitentiary on the 22d day of July, 1925. He was, in due time, transported to the penitentiary, and was serving oar his sentence when the court made the order setting it aside, on the 17th day of December, 1925. The authorities on the power of the court to set aside a sentence in a felony case after it has been partly executed at the same term are in -direct conflict.
In Bassett v. United States, 9 Wall. (H. S.) 38, in an opinion delivered by Mr. Justice Miller it was held that it is competent for a 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. To the same effect see State v. Butler (Md.), 18 Atl. 1105, and In the Matter of John, Brittain, 93 N. C. 587.
In Ex parte Lange, 18 Wall. (U. S.) 163, in an opinion delivered by the same learned judge, it was held that, the judgment of the court 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. In discussing the limit to the power of the court in such cases, it was said:
“The judgment of the court to this effect being rendered and carried into execution before the expiration of the term, can the judge vacate that sentence and substitute fine or imprisonment, and cause the latter sentence also to he executed? Or, if the judgment of the court is that the convict be imprisoned -for four months, and he enters immediately upon the period of punishment, can the court, after it has been fully completed, because it is still in session of the same term, vacate that judgment and render another, for three or six months’ imprisonment, or for a fine? Not only the gross injustice of such a proceeding, but the inexpediency of placing such a power in the hands of any tribunal, is manifest.
“If there is anything settled in the jurisprudence of England and America, it is that no man can be twice lawfully punished for the same offense. And, though there have been nice questions in the application of this rule, to cases in which the act charged was such as to come within the definition of more than one statutory offense, or to bring the party within the jurisdiction of more than one court, there has never been any doubt of its entire and complete protection of the party, when a second punishment is proposed in the same court, on the same facts, for the same statutory offense.”
If the court has no power to set aside a judgment which has been partly executed, and increase the punishment at the same term during which the original .judgment was rendered, it is as difficult to see upon what principle it would have the power to set aside the judgment and mitigate the punishment. When a judgment is reversed or set aside, it is just as if it had never been rendered, and the defendant in the case will be placed in jeopardy just the same, whether his punishment is increased or diminished, at the second trial. To illustrate : If a person should be indicted and tried for murder in the first degree, and found guilty of manslaughter, and his punishment fixed at the lowest term for that crime, there would he an implied acquittal of the higher degree of homicide, and he could not he tried for murder upon securing a new trial in the circuit court, or a reversal of the judgment in the Supreme Court. But, upon being retried, he could be again convicted of manslaughter, and his punishment fixed at the highest term for that offense. The reason is that, when he secures a new trial or a reversal of the judgment, as the case may be, the original judgment is set aside, and is in effect as if it had never been rendered. Hence no plea of former .jeopardy could avail him anything, so far as the trial for manslaughter is concerned. iWe think the better reasoning, as well as the trend of authority, is that where the defendant has executed or entered upon the execution of a valid sentence, thé court cannot, even during the term at which the sentence was rendered, set it aside and render a new sentence. 16 C. J. 1314.
In 12 Cyc. 783, it is said: “At any time during the term the court has power to reconsider the judgment, and to revise and correct it by mitigating and even by increasing its severity, where the original sentence has not been executed or put into operation; but, 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 impose one which inflicts a greater punishment.”
And in 2 Bishop’s New Criminal Procedure (2d ed. § 1298), it is said: “The power of the court to alter its docket entries and records during the term wherein they are made includes the right within such time to revise, correct, and change its sentences, however formally pronounced, if nothing has been done under them. But steps taken under a sentence, for example, a substantial part execution thereof, will cut off the right to alter it, even during the term. And with the expiration of the term the power expires.” 'See also Wharton’s Criminal Procedure, 10th ed. § 1853; 8 R. C. L. 245; 25 Enc. of Law, 2d ed. 315, and 19 Enc. of Pleading and Practice, 493.
In State v. Cannon, 11 Ore. 312, Pac. 191, it was said that where a sentence has been passed upon the defendant, and the judgment has g'one into effect by the commitment of the defendant under it, the court has done all that it has the legal power to do under the proceedings in that case.
In Bradford v. People, 22 Col. 157, 43 Pac. 1013, it was said that it is well established that, where the defendant has entered upon the execution of a valid sentence, such a sentence cannot be set aside and a new sentence entered.
In re Jones, 53 N. W. 468, the ¡Supreme Court of Nebraska said that the power of a court to revise or change a judgment in a civil case is at an end after the same is in process of execution.
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Hart, J.,
(after stating the facts). The first inquiry-presented for our consideration is the nature and extent of the power of the circuit court over its own judgments in vacating them during the same term at which they are rendered. The circuit court, in ordering the release of Boyles, proceeded on the theory that it is competent for the court to modify a judgment, in either a civil or criminal case, during the term at which the'judgment was rendered. It is a rule of universal application that, so long as a judgment or sentence of a court remains unexecuted or is not put in operation, it is, in contemplation of law, in the breast of the presiding judge of the court, and is subject to revision and alteration during- the same term at which it is rendered.
In the case at bar the circuit court set aside its judgment at the same term at which it was rendered, hut it was after the defendant had served a substantial part of the sentence. J. M. Boyles entered a plea of guilty to the crime of unlawfully making- mash,' and was sentenced to serve a year in the State Penitentiary on the 22d day of July, 1925. He was, in due time, transported to the penitentiary, and was serving oar his sentence when the court made the order setting it aside, on the 17th day of December, 1925. The authorities on the power of the court to set aside a sentence in a felony case after it has been partly executed at the same term are in -direct conflict.
In Bassett v. United States, 9 Wall. (H. S.) 38, in an opinion delivered by Mr. Justice Miller it was held that it is competent for a 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. To the same effect see State v. Butler (Md.), 18 Atl. 1105, and In the Matter of John, Brittain, 93 N. C. 587.
In Ex parte Lange, 18 Wall. (U. S.) 163, in an opinion delivered by the same learned judge, it was held that, the judgment of the court 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. In discussing the limit to the power of the court in such cases, it was said:
“The judgment of the court to this effect being rendered and carried into execution before the expiration of the term, can the judge vacate that sentence and substitute fine or imprisonment, and cause the latter sentence also to he executed? Or, if the judgment of the court is that the convict be imprisoned -for four months, and he enters immediately upon the period of punishment, can the court, after it has been fully completed, because it is still in session of the same term, vacate that judgment and render another, for three or six months’ imprisonment, or for a fine? Not only the gross injustice of such a proceeding, but the inexpediency of placing such a power in the hands of any tribunal, is manifest.
“If there is anything settled in the jurisprudence of England and America, it is that no man can be twice lawfully punished for the same offense. And, though there have been nice questions in the application of this rule, to cases in which the act charged was such as to come within the definition of more than one statutory offense, or to bring the party within the jurisdiction of more than one court, there has never been any doubt of its entire and complete protection of the party, when a second punishment is proposed in the same court, on the same facts, for the same statutory offense.”
If the court has no power to set aside a judgment which has been partly executed, and increase the punishment at the same term during which the original .judgment was rendered, it is as difficult to see upon what principle it would have the power to set aside the judgment and mitigate the punishment. When a judgment is reversed or set aside, it is just as if it had never been rendered, and the defendant in the case will be placed in jeopardy just the same, whether his punishment is increased or diminished, at the second trial. To illustrate : If a person should be indicted and tried for murder in the first degree, and found guilty of manslaughter, and his punishment fixed at the lowest term for that crime, there would he an implied acquittal of the higher degree of homicide, and he could not he tried for murder upon securing a new trial in the circuit court, or a reversal of the judgment in the Supreme Court. But, upon being retried, he could be again convicted of manslaughter, and his punishment fixed at the highest term for that offense. The reason is that, when he secures a new trial or a reversal of the judgment, as the case may be, the original judgment is set aside, and is in effect as if it had never been rendered. Hence no plea of former .jeopardy could avail him anything, so far as the trial for manslaughter is concerned. iWe think the better reasoning, as well as the trend of authority, is that where the defendant has executed or entered upon the execution of a valid sentence, thé court cannot, even during the term at which the sentence was rendered, set it aside and render a new sentence. 16 C. J. 1314.
In 12 Cyc. 783, it is said: “At any time during the term the court has power to reconsider the judgment, and to revise and correct it by mitigating and even by increasing its severity, where the original sentence has not been executed or put into operation; but, 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 impose one which inflicts a greater punishment.”
And in 2 Bishop’s New Criminal Procedure (2d ed. § 1298), it is said: “The power of the court to alter its docket entries and records during the term wherein they are made includes the right within such time to revise, correct, and change its sentences, however formally pronounced, if nothing has been done under them. But steps taken under a sentence, for example, a substantial part execution thereof, will cut off the right to alter it, even during the term. And with the expiration of the term the power expires.” 'See also Wharton’s Criminal Procedure, 10th ed. § 1853; 8 R. C. L. 245; 25 Enc. of Law, 2d ed. 315, and 19 Enc. of Pleading and Practice, 493.
In State v. Cannon, 11 Ore. 312, Pac. 191, it was said that where a sentence has been passed upon the defendant, and the judgment has g'one into effect by the commitment of the defendant under it, the court has done all that it has the legal power to do under the proceedings in that case.
In Bradford v. People, 22 Col. 157, 43 Pac. 1013, it was said that it is well established that, where the defendant has entered upon the execution of a valid sentence, such a sentence cannot be set aside and a new sentence entered.
In re Jones, 53 N. W. 468, the ¡Supreme Court of Nebraska said that the power of a court to revise or change a judgment in a civil case is at an end after the same is in process of execution. It was likewise said that, while a district court has ample authority to correct a judgment in a criminal case at the term of court at which it was rendered, or a subsequent term, to make the same conform to the one actually pronounced, it has no jurisdiction to vacate a judgment in a criminal case after the same has g’one into effect by the commitment of the defendant under it, and substitute for it another sentence at the same term of the court.
In People v. Meservey, 42 N. W. 1133, the Supreme Court of Michigan said, in discussing a case where the original sentence had gone, into effect, that the circuit court had no power at that time to vacate the sentence, because the authority over the prisoners had passed out of its hands by its own order.
In Grisham v. State, 19 Tex. Ct. of Appeals, 504, the court said that in criminal cases the power of courts over their judgments during the term at which they are rendered does no't extend to cases where punishment has already been inflicted, in whole or in part, and that conviction, followed by an endurance of punishment, will bar a future prosecution for the same offense. See also Com. v. Weymouth, 2 Allen (Mass.), 144, 79 Am. Dec. 776; Brown v. Rice, 57 Me. 55, 2 Am. Reps. 11; Com. v. Foster, 122 Mass. 317, 23 Am. Reps. 326; State v. Crook, 115 N. C. 760; and State v. Meyer, 86 Kan. 793, 122 Pac. 101, 40 L. R. A. (N. S.) 90.
In United States v. Vayson, 27 Philippine Reps. 447, the court held: “Where a court, in passing sentence, has acted under a misapprehension of the facts necessary and proper to be known in fixing the penalty, it may, in the exercise of sound judicial discretion, and in the furtherance of justice, ex mero motu, before the judgment has become final, and before the original sentence has gone into operation, revise and increase or diminish such sentence within'the limits authorized by law.”
This holding is a recognition of the rule, well established, that, where the defendant has entered upon the execution of a valid sentence, the court loses jurisdiction over the case.
Reasoning by analogy, it may be said that the case is not unlike one where an appeal is taken to the Supreme Court at the same term during which the judgment is rendered in the lower court.
In Robinson v. Arkansas Loan & Trust Co., 72 Ark. 475, it was held that, when an appeal is granted and an authenticated copy of the record is filed in this court, the suit is thereby removed to the Supreme 'Court. When the transcript is filed, the jurisdiction of the Supreme Court is complete, and the lower court loses jurisdiction except to correct its judgment to make it-speak the truth, in aid of the jurisdiction of the appellate court. The same rule has been held applicable to criminal cases. Freeman v. State, 158 Ark. 262.
Thus it will be seen that, while the general- power of the court over its judgments, both in civil and criminal cases, during the term in which they are first rendered is undoubted, still there are well known exceptions to the general rule. If the trial court loses jurisdiction over the case when the statutory requirements for an appeal are complied with, and a transcript of the record is filed with the clerk of this court, it would seem that for a similar reason the trial court would lose jurisdiction of. the case when it had issued its commitment of the defendant to the State Penitentiary, and the defendant had been transported there, and was serving his sentence.
Reference has been made to the case of Williams v. State, 125 Ark. 287, and Davis v. State, 169 Ark. 932; but we do not consider that either of these cases has any direct bearing upon the decision of the case at bar. In the Williams case, the defendant was serving a term in the State Penitentiary for a felony, and, under the statute, was brought into court to testify in another case, and the court attempted to punish him for contempt by confinement in the county jail. It was held that the circuit court had no authority to set aside the judgment under which Williams was serving a sentence in the penitentiary, and confine him in the county jail for contempt. In the Davis case it was expressly held that the circuit court had no inherent power to suspend, indefinitely, the execution of a sentence against one found guilty of crime, nor did it have any such power under the provisions of the act of 1923, authorizing circuit judges to postpone.the pronouncement of final sentence, under certain conditions. The question of the power of the court to set aside a sentence which had been executed in part, was not determined or even considered.
It has been suggested that the act of 1923 just referred to, conferred upon the court the power to set aside the judgment and postpone the pronouncement of a new sentence in the case at bar. This makes it necessary for us to pass upon the constitutionality of this statute and to determine its application to the question under consideration. The constitutionality of the statute was, by implication, upheld in the Davis case, and also in Ex parte United States, 242 U. S. 27.
In a case-note to 26 A. L. R. 400’, it is said that, although the opposite view obtains in a few jurisdictions, by the weight of authority a statute is not unconstitutional because it confers upon the court the power to postpone the pronouncement of sentence indefinitely, in the discretion of the court, and many decisions from courts of last resort of the several States are cited in support of the text. In this connection, it may he stated that the cases cited sustain the constitutionality of such acts, and expressly hold that the power thus conferred upon the circuit court does not encroach on the constitutional powers of the executive to grant reprieves and pardons. We do not think, however, that the statute has any bearing on the main question. Section 1 provides that whenever, in criminal trials, in the circuit court, 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 shall 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 probation of the person convicted, the restitution of the property involved, and the payment of the costs of the case. Thus it will be seen that § 1 does not touch upon the power of the circuit court to alter or revise its own judgments during the same term, after such judgment has been put in operation and the defendant has begun to serve his sentence under it. Section 2 of the act deals entirely with the power of the court to revoke the postponement mentioned in § 1 and pronounce sentence. Section 3 deals with the question of costs. The act may be found in the General Acts of Arkansas, 1923, p. 40.
The result of our views is that the first judgment and sentence of the Perry Circuit Court did not remain in the breast of the presiding judge until the end of the term subject to revision, alteration or rescission, but that it passed entirely from the control of the court by its own action. When the court rendered a judgment sentencing the defendant to a term in the State Penitentiary, and issued its commitment, directing the sheriff to transport the defendant to the penitentiary for the purpose of serving his sentence, and when the defendant had served a part of the sentence, the court lost jurisdiction over the case, and could not, even at the same term, set aside its original sentence and postpone the pronouncement of sentence under the act of 1923, just referred to.
In other words, we are of the opinion that the commitment, after the record of conviction was made, and the defendant had served a part of his sentence, completely exhausted the power of the circuit court, and ousted it of jurisdiction to set aside its judgment, for the reason that, to permit the judgment to be set aside and another sentence to be imposed some time in the future, after the first sentence had been partially executed, would, in effect, put the defendant in jeopardy twice for the same offense.
It follows that the judgment of the Pulaski Circuit Court, ordering J. M. Boyles to be released from the State Penitentiary, should be quashed, and it is so ordered.
Smith and Humphreys, JJ., dissenting.