The New York herald., 1873-12-25

ment. The question now comes, 10 II within the
power OF the Court legally 70 rescind sentence
MI. Arnoux, IN addressing himself to this ques-
tfon, whether the verdict stood generally guilty,
the special verdict which the jury did, In fact,
render, the sentence OF the Court could only be
pronounced on one indictment as unit, and for
only one CONVICTION and punishment He alluded
to the argument OF counsel and the opinion OF
Judge Davis In the case OF william NJ Tweed and
cited the declaration Of Judge Benedict that there
was only one conviction in the case; that his
charge to the jury had regard to only transac-
tIon, and that he intended, IN the sentence, to
punish Tor the commission OF one ofience only. Bur
the defendant claimed that Judge or Court, SIT
ting court OF review, could not always be bound
by the record OF the Clert in the minutes or the
Court where the sentence was imposed but that
the Court might have matters relating to the
Counsel further contended that the FIRST sentence
upon Lange was illegal and v0id lt was the duty
OF the Court 10 discharge Lange when the lllegaly
OF the sentence was established The alternative
was given to the judge under the law, either to
impose fine or to mprison, but 1T was not legally
grave question whether the effect OF double SEN
tence was TO render Illegal the wn0e or only the
excess Of punishment; and II the latter. wnat was
the excess OF punishment The defendant con.
tended that II any part OF the sentence could stanu
then tnat which was last should stand In prefer
ence to that which was first. II any part OF the
sentence could stand the in1iction OF the hne sub
sequent TO the Imprisonment the former being,
under the law, IN iui satisfaction of tne CRIME OF
whole punishment, as the fine had been offered to
and received py the United states in satisfaction
OF that portion OF the sentence. The sentence was,
in part, executed, and had become beyond the con-
troll OF the Judge who pronounced Ii, aS Lange mad
been imprisoned under 1t, and had paid the pen
power OF the Court had been exhausted In the irst
sentence, and that the second was entirely with
out any jurisdiction. On these grounds the de-
fendant was entitled to the writ asked for and to
his discharge from wrongful and illegal connne-
ment.
Mr.. A. H. Purdy, United States Assistant District
Attorney in reply, adverted to the Callicott case
IN which he maintained that Judge Woodrun he'd
that ne had no Jurisdiction to review on habeas
corpus the Judgment OF the Circuit Court on con-
vction and sentence on an Indictment ON the ale
cation that the statute under which the sentence
was inflicted had been repealed before the SEN
tence passed. Counsel urged that the prin-
cipes OF that should apply to the present one
and maintained that the Court had power to re-
send an erroneous sentence and impose q new,
II. as In the present instance, such proceeding
were had in during the term OF the Court within
which the prisoner had been tired.
THE JUDGMENT.
At half-past three O'CLOCK the Judges took their
seats upon the bench, when Judge woodruff de-
ivered the opinion OF the Court as 'ol0ws:-
We are Of opinion that the Judgment rendered
In this case, IL being lOr o punishment expressly
authorized by statute, cannot be impeached under
proceedings by nabeas corpus, II the Court had
Jurisdiction to pronounce that Judgment The only
ground upon which that jurisdiction is questioned
Is that the Court had, upon previous day IN the
same term. pronounced & judgnlent imposing n dif,
been vacated by order OF the Court. II the Court
had power to vacate that judgment 1t became OF no
to deal with the prisoner upon his conviction OF
the offence charged In the Indictment. That the
Court had such power is, we think. established by
the authorities referred to on the argu-
the same term, the former Judgment IS
to be regarded as being subject to the
exercise OF such power by the Court II required by
the ends Of justice. Any inconvenience to the
prisoner wrought thereby IS 10 be regarded as one
OF the incidents to the administration OF justice,
arising from the temporary occurrence OF error or
irregularity and such former judgment being con-
fessedly wholly Illegal, what was done under 1t can
have no effect TO take away the jurisdiction OF the
Court to proceed at the same time to q legal SEN
tence. We are, therefore, oil opinion that the pris-
oner is not derived OF his liberty in coniavention
OF the constitution or laws OF the United States,
ana that ii he were before us on the writ prayed
Tor we should he compelled 10 remand him TO the
custody In wDicn now Is. The application is,
therefore, refused.