it is awarded on such counts.12 Further, the fact that separate sentences are passed upon the bad counts to run concurrently with the sentence imposed on the good count will not affect the sentence supported by the good count if the punishment imposed thereon is within that allowed by law for such good count,13 although, where the elements involved in the separate counts are not identical, the rule does not apply, especially where the sentence was imposed on the basis that defendant was guilty of the offenses charged in all counts.14 It is the better practice, however, expressly to limit the sentence to the good counts.15 Where the verdict of the jury finds defendant guilty under a bad count, the court cannot impose sentence on the good count on which the verdict was silent.16

[ 3030] e. Separate Offenses Differing in Degree Arising out of Same Transaction-(1) In General. Where two or more counts in an indictment charge different crimes, which are of the same character, and which grow out of the same transaction, yet differ in degree, the general rule is that the sentence, based on a general verdict or plea of guilty, must impose only one penalty, and a separate sentence for each crime, imposing a separate punishment to run consecutively, is erroneous and

622; State v. Bean, 21 Mo. 269.

12. Ala.-State v. Coleman, 5 Port. 32.

Fla.-Cribb v. State, 9 Fla. 409. Mass.-Com. v. Foster, 122 Mass. 317, 23 AmR 326; Com. v. Hawkins, 3 Gray 463; Josslyn v. Com., 6 Metc. 236; Jennings v. Com., 17 Pick. 80; Com, v. Holmes, 17 Mass. 337; Brown v. Com., 8 Mass. 59.

N. J.-State v. Dugan, 65 N. J. L. 65, 46 A 566 [aff 65 N. J. L. 684, 48 A 1118]; Stephens v. State, 53 N. J. L. 245, 21 A 1038.

N. Y.-Polinsky v. Peo., 11 Hun 390 [aff 73 N. Y. 65]; Baron v. Peo., 1 Park. Cr. 246.

N. C.-State v. Hall, 108 N. C. 776, 13 SE 189; State v. Toole, 106 N. C. 736, 11 SE 168; State v. McCauless, 31 N. C. 375.

Oh.-Boose v. State, 10 Oh. St. 575. Eng.-Holloway v. Reg., 17 Q. B. 317, 79 ECL 317, 117 Reprint 1300; Reg. v. Bullock, Dears. C. C. 653. 13. Aczel v. U. S., 232 Fed. 652, 146 CCA 578; Frankfurt v. U. S., 231 Fed. 903, 146 CCA 99; Ryan v. U. S., 216 Fed. 13, 132 CCA 257; Bartholomew v. U. S., 177 Fed. 902, 101 CCA 182 [certiorari den 217 U. S. 608 mem, 30 SCt 697 mem, 54 L. ed. 901 mem].

14. Johnson v. U. S., 215 Fed. 679, 131 CCA 613, LRA1915A 862.

15. State v. Tibbetts, 86 Me. 189, 29 A 979; State V. Burke, 38 Me. 574; Com. v. Howe, 13 Gray (Mass.) 26.

16. State v. Cottrell, 45 W. Va. 837, 32 SE 162.

V.

[rev 27 Hun 272],

void. However, the practice in some jurisdictions is to pronounce a sentence on each count to run concurrently,18 which in effect constitutes but one sentence.19 Likewise, where defendant is charged in different counts of the indictment with separate offenses arising out of the same transaction and the acts of defendant constitute but one offense, on a general verdict or plea of guilty to all of the counts he is not subject to sentence on each count to run successively.20

Where defendant pleads guilty to an indictment charging the same offense in different counts the entry of one judgment by the court is proper.21

[§ 3031] (2) Degree for Which Sentence Imposed. Where, as is a common practice, one crime is charged in several good counts in one indictment, in different degrees, and a general verdict of guilty is rendered thereon on sufficient evidence, accused may be sentenced upon that count of the indictment which charges the highest degree of the crime.22 Likewise, where there is a merger of one count or offense into another on a verdict of guilty the court may pronounce sentence upon the count charging the higher offense.23 On a plea of guilty to an information which charges the same criminal transaction in two counts and under different statutes,

Oh.-Woodford v. State, 1 Oh. St. 427: Buck v. State, 1 Oh. St. 61; Devere v. State, 5 Oh. Cir. Ct. 509, 3 Oh. Cir. Dec. 249.

Tex.-Bennett V. State, 31 Tex.

303.

Vt.-State v. Darling, 77 Vt. 67, 58
A 974.

Eng. Ryalls v. Reg., 11 Q. B. 795,
63 ECL 795, 116 Reprint 672; O'Brien
v. Reg., 2 Cox C. C. 122.
Excessive and partly
sentence see infra § 3093.

erroneous

18. Imboden v. Peo., 40 Colo. 142, 90 P 608; Archbold Cr. Pl. & Ev. (13th London ed) 62.

19. Imboden v. Peo., 40 Colo. 142, 90 P 608.

20. Ulmer v. U. S., 219 Fed. 641, 134 CCA 127; O'Brien v. McClaughry, 209 Fed. 816, 126 CCA 540; Stevens v. McClaughry, 207 Fed. 18, 125 CCA 102, 51 LRANS 390; Munson v. McClaughry, 198 Fed: 72, 117 CCA 180, 42 LRANS 302; Halligan v. Wayne, 179 Fed. 112, 102 CCA 410; U. S. v. Maguire, 26 F. Cas. No. 15,708; Lyons v. Peo., 68 Ill. 271; State v. Littleton, 77 W. Va. 804, 88 SE 458. See also Anderson v. Moyer, 193 Fed. 499 (holding that where burglary and larceny are charged in one count and a general conviction is had thereon, the court may sentence only for the burglary).

[a] "The principle upon which the decisions in these cases rests is that two or more separate offenses which are committed at the same time and are parts of a single continuing criminal act, inspired by the same criminal intent which is essential to each offense, are susceptible to but one punishment. The most familiar illustration of the rule is that burglary with intent to commit larceny and larceny committed at the same time and as one continued act do not subject the perpetrator to two punishments, one for the burglary and another for the larceny, because the same criminal intent is indispensable to each, and they are each parts of a continuing criminal act." Stevens V. McClaughry, 207 Mo.-State v. James, 63 Mo. 570. Fed. 18, 20, 125 CCA 102, 51 LRANS Nebr.-Yeoman v. State, 81 Nebr. 390.

17. U. S.-Ex p. Joyce, 13 F. Cas. No. 7,556. But compare U. S. Thompson, 202 Fed. 346 [aff 204 Fed. 973, 123 CCA 295] (holding that a judgment in a criminal case, designating different and consecutive periods of imprisonment of a defendant on different counts in the same indictment, charging a violation of the White Slave Traffic Act, does not constitute separate and distinct sentences for each period, but a "single sentence" for the aggregate period). Ill.-Parker v. Peo., 97 I11. 32; Mertz v. Peo., 81 Ill. A. 576.

under three counts, is guilty of one offense only, and is not subject to successive sentence on each conviction. Ulmer v. U. S., 219 Fed. 641, 134 CCA 127.

21. Peo. v. Wilmot, 254 Ill. 554, 98 NE 973; Peo. v. Dougherty, 246 Ill. 458, 92 NE 929.

22. Ark.-Curtis v. State, 26 Ark.

439.

Fla. Cribb v. State, 9 Fla. 409. Ga.-Dean V. State, 43 Ga. 218; Bulloch v. State, 10 Ga. 47, 54 AmD 369.

Il-Peo. v. Stowers, 254 Ill. 588, 98 NE 986; Langford v. Peo., 134 Ill. 444, 25 NE 1009.

Me.-State v. Hood, 51 Me. 363. Md.-Manly v. State, 7 Md. 135. Mass.-Com. v. Hope, 22 Pick, 1. Mo.-State v. Core, 70 Mo. 491: State v. Pitts, 58 Mo. 556; State v. Bean, 21 Mo. 269.

N. J.-State v. Dugan, 65 N. J. I. 684, 48 A 1118 [aff 65 N. J. L. 65, 46 A 5661: Stephens v. State, 53 N. J. L. 245, 21 A 1038; Cook v. State, 24 N. J. L. 843.

N. Y.-Hawker v. Peo., 75 N. Y. 487; Peo. v. Edwards. 173 App. Div. 375, 159 NYS 410; Conkey v. Peo., 1 Abb. Dec. 418, 5 Park. Cr. 31; Peo. v. Bruno, 6 Park. Cr. 657; Peo. v. McGeery, 6 Park. Cr. 653.

Oh.-Breese v. State, 12 Oh. St. 146, 80 AmD 340.

Pa.Com, v. Doughty, 139 Pa. 383, 21 A 228; Johnston v. Com., 85 Pa. 54, 27 AmR 622; Henwood v. Com., 52 Pa. 424.

Philippine.-U. S. v. Marasigan, 11 Philippine 27 (holding that whenever one sole act constitutes two or more crimes, or, if one of them is the necessary means for committing the other, the penalty corresponding to the more serious crime shall be imposed in its maximum degree, as provided in Pen. Code art 89).

Vt.-State v. Darling, 77 Vt. 67, 58 A 974; State v. Hooker, 17 Vt. 658. [a] In Louisiana, where burglary with intent to steal and larceny committed at the same time and place are charged in separate counts, the more approved practice upon a general verdict of guilty is to enter a nolle prosequi as to the lower and to impose sentence as to the higher offense. State v. Lewis, 129 La. 800, 56 S 893.

244, 115 NW 784; Barker v. State, [b] For example, accused in a 54 Nebr. 53, 74 NW 427; Griffen v. prosecution for perjury, under Bankr. State, 46 Nebr. 282, 64 NW 966; In Act § 29b (2), although having made re Walsh, 37 Nebr. 454, 55 NW 1075. the same false statement on three 23. Md.-Manly v. State, 7 Md. N. Y.-Peo. v. Dunn, 90 N. Y. 104 occasions and having been convicted 135.

the court may impose a sentence on the second count, although it is greater than that which it may impose on the first count.24

Inconsistent offenses in different counts. Where defendant is charged in different counts with inconsistent crimes a general verdict, if valid at all,25 can be made so only by confining the sentence to the least offense charged.20 Where, however, a defendant is indicted, in separate counts, for two inconsistent offenses growing out of the same transaction, and thus could not have been guilty of both, on a plea of guilty to both counts the court may hear evidence and sentence defendant for the crime of which the proof shows him guilty.27

mon law being greater than that imposed by the statute, on a general verdict of guilty the sentence must be imposed according to the statute diminishing the common-law punishment.28

[3032] f. Separate Offenses Arising out of Different Transactions—(1) In General. As a general rule where defendant enters a plea of guilty or is convicted by a general verdict on two or more counts of an indictment charging crimes which are of the same character, although growing out of totally distinct and separate transactions, sentence may be passed and judgment may be entered for a specified term of imprisonment upon each count to run consecutively;29 and in such case it is generally held erroneous to consolidate into one sentence the total punishment which may be inflicted for each offense of which defendant is convicted,30 although in some jurisdictions a single sentence in gross is held proper, provided the sentence is not in excess of the maximum allowed by law for all Cal.-Ex p. Dalton, 49 Cal. 463; | law of Virginia, may be and often Peo. v. Forbes, 22 Cal. 135. Colo.-Parker v. Peo., 13 Colo. 155, 21 P 1120, 4 LRA 803.

Same offense charged in different counts under common law and statute. Where an indictment contains a count for a common-law misdemeanor and one for a statutory misdemeanor, and they are in reality only various statements of the same transaction, and the punishments differ, that of the comMass.-Com. v. Hersey, 2 Allen

173; Larned v. Com., 12 Metc. 240; Kite v. Com., 11 Metc. 581; Crowley v. Com., 11 Metc. 575; Devoe v. Com., 3 Metc. 316; Com. v. Hope, 22 Pick. 1. Oh.-Buck v. State, 1 Oh. St. 61. Pa.-Johnston v. Com., 85 Pa. 54, AmR 622; Harman v. Com., 12 Serg. & R. 69.

27

Conn.-State v. Tuller, 34 Conn.
280; Barnes v. State, 19 Conn. 398.
D. C.-Matter of Fry, 14 D. C. 135;
In re Jackson, 10 D. Č. 24.
Fla.-Washington v. State, 51 Fla.

W. Va.-State v. Littleton, 77 W. 137, 40 S 765. Va. 804, 88 SE 458.

See State v. Nelson, 48 S. C. L. 169, 172. 94 AmD 130 (where the court said: "Where an indictment charges the same transaction in one count as a felony, and in another as a misdemeanor of such nature that the latter is or may be included in the former, it is merged in it if the higher offence has been consummated; and the jury, even if there were no charge of the less offence in a separate count, might convict of this under the count for the greater, if the evidence, in their judgment, warranted no more. A general verdict of guilty is understood to find the higher offence, if there is testimony to support it; and the finding of such verdict is not a ground for a new trial even").

Identity of offenses generally see supra § 443 et seq.

24. Peo. v. Morris, 80 Mich. 634, 45 NW 591, 8 LRA 685. Compare Polinsky v. Peo., 11 Hun 390 [aff 73 N. Y. 65] (holding that on a plea of guilty a general judgment may be entered which will be valid if applicable to any count, although crimes of varying degrees and punishments are included therein). 25. See supra § 2592.

26.

43 NW 997.

In re Franklin, 77 Mich. 615, 27. Peo. v. Carr, 255 Ill. 203, 99 NE 357, 41 LRANS 1209, AnnCas 1913D 864.

[a] Illustration. Although the burglary and the receiving of stolen property charged by an indictment grew out of the same transaction, so that defendant could not be guilty of both, his plea of guilty generally to the indictment will support the judgment sentencing him, after the hearing of evidence by the court, for the crime of burglary. Peo. v. Carr, 255 Ill. 203, 99 NE 357, 41 LRANS 1209, AnnCas1913D 864.

28. State v. Thompson, 33 S. C. L. 12, 47 AmD 588.

29. U. S.-Anderson v. Moyer, 193 Fed. 499; Ex p. Peeke, 144 Fed. 1016 [aff 153 Fed. 166, 167, 82 CCA 340, 12 LRANS 314, and cit Cycl; Chadwick v. U. S., 141 Fed. 225, 72 CCA 343; In re Greenwald, 77 Fed. 590; Ex p. Hibbs, 26 Fed. 421; Ex p. Peters, 12 Fed. 461, 2 McCrary 403; U. S. v. Bennett, 24 F. Cas. No. 14,572, 17 Blatchf. 357.

Ark.-Toliver v. State, 35 Ark. 395.

Ill.-Peo. v. Brown, 273 Ill. 169, 112 NE 462 [aff 196 Ill. A. 400]; Peo. v. Elliott, 272 Ill. 592, 112 NE 300; Johnson v. Peo., 83 II. 431; Teerney v. Peo., 81 Ill. 411; Fletcher v. Peo., 81 Ill. 116; Stack v. Peo., 80 I11. 32; Kroer v. Peo., 78 III. 294; Martin v. Peo., 76 Ill. 499; Mullinix v. Peo., 76 Ill. 211; Bolun v. Peo., 73 Ill. 488; Dachsenbuehler v. Peo., 89 Ill. A. 493. Kan.-El Dorado v. Beardsley, 53 Kan. 363, 36 P 746; State v. Emmons, 45 Kan. 397, 26 Р 679; State V. Hodges, 45 Kan, 389, 26 P 676; State v. Carlyle, 33 Kan. 716, 7 P 623; In re Donnelly, 30 Kan. 424, 1 P 778.

La.-State v. Robinson, 40 La. Ann. 730, 5 S 20. See State v. Lewis, 129 La. 800, 56 S 893 (holding that when burglary with intent to steal and larceny committed at the same time and place are charged, the more approved practice upon a general verdict of guilty is to enter a nolle prosequi as to the lower and to impose sentence as to the higher offense, although it hardly would be considered reversible error for the trial judge to impose a cumulative sentence).

Me.-State v. Hood, 51 Me. 363. Mass.-Com. v. Foster, 122 Mass. 317, 23 AmR 326; Tuttle v. Com., 2 Gray 505; Crowley v. Com., 11 Metc. 575; Josslyn v. Com., 6 Metc. 236.

Mo.-State v. Kelley, 206 Mo. 685, 105 SW 606, 12 AnnCas 681; State v. Ambs, 20 Mo. 214.

Nebr.-White V. State, 88 Nebr.
177, 129 NW 259: Hans v. State, 50
Nebr. 150, 69 NW 838; Nichols v.
State, 49 Nebr. 777, 69 NW 99; In re
Walsh, 37 Nebr. 454, 55 NW 1075;
Smith v. State, 32 Nebr. 105, 48 NW
823; State v. Pischel, 16 Nebr. 490,
20 NW 848.

N. J.-Stephens v. State, 53 N. J.
L. 245, 21 A 1038.

Oh.-Eldredge v. State, 37 Oh. St.
191; Williams v. State, 18 Oh. St. 46;
Woodford v. State, 1 Oh. St. 427;
Buck v. State, 1 Oh. St. 61.

Pa.-Com. v. Birdsall, 69 Pa. 482,
8 AmR 283; Com. v. Gurley, 45 Pa.
392: Com. v. Sylvester, Brightly 331.
Utah.-U. S. v. West, 7 Utah 437,
27 P 84.

Va.-Speers v. Com., 17 Gratt. (58 Va.) 570. See Benton v. Com., 91 Va. 782, 21 SE 495 (holding that, while housebreaking with intent to commit larceny and grand larceny, although distinct offenses under the

are one continuous act, and may be charged in the same count of an indictment, upon which count accused may be found guilty of either or of both offenses, the sentence can impose only one penalty; and if in such a case it is desired to sentence for both offenses a separate count for the larceny must be inserted in the indictment).

Wis.-In re McCormick, 24 Wis. 492, 1 AmR 197.

Eng.-Castro v. Reg., 6 App. Cas. 229; Gregory v. Reg., 15 Q. B. 957, 69 ECL 957, 117 Reprint 719; Douglas v. Reg., 13 Q. B. 74, 66 ECL 74, 116 Reprint 1191; Campbell v. Reg., 11 Q. B. 799, 63 ECL 799, 116 Reprint 674; Rex v. Jones, 2 Campb. 131; Reg. v. Carter, 9 Jur. 178; Rex v. Robinson, 1 Moody C. C. 413.

Ont.-Rex v. Degan, 17 Ont. L. 366, 12 OntWR 1047.

[a] In New York (1) under Pen. Code 596, providing that a person who, having entered a building under such circumstances as to constitute burglary, commits any crime therein is punishable therefor as well as for the burglary and may be prosecuted for each crime separately or in the same indictment, where burglary and larceny are committed they may be united in one indictment, may be tried together, and defendant may be punished for each separately, one sentence to commence at the expiration of the other, pursuant to 694, providing that, where a person is convicted of two or more offenses, the imprisonment to which he is sentenced on the second or subsequent conviction must commence at the expiration of the first or prior imprisonment. Peo. v. Frost, 58 Misc. 618, 109 NYS 1121. (2) In the absence of statute, however, it was held in the famous Tweed case (which has been repudiated by most judges and text-writers) that where, upon the trial of an indictment containing several counts, charging separate and distinct misdemeanors, identical in character, a general verdict of guilty is rendered, or a verdict of guilty upon two or more specified counts, the court has no power to impose a sentence or cumulative sentences exceeding, in the aggregate, what is prescribed by statute as the maximum punishment for one offense of the character charged. Peo. v. Liscomb, 60 N. Y. 559, 19 AmR 211.

Sentence and punishment in courtmartial proceedings see Army and Navy § 165 et seq.

30. U. S.-U. S. v. Peeke, 153 Fed. 166, 82 CCA 340, 12 LRANS 314 [aff 144 Fed. 1016]; In re Greenwald, 77 Fed. 590; Ex p. Peters, 12 Fed. 461,

the offenses of which defendant has been found guilty.31 In some jurisdictions, however, in the absence of statute a cumulative sentence cannot be imposed by the court;32 and when several offenses are charged in separate counts in the same indictment, a sentence imposing consecutive terms of imprisonment on each count for which defendant was found guilty will operate concurrently.33

Concurrent sentence. A defendant is not prejudiced and therefore cannot complain that the court erroneously directed that sentence on each count should run concurrently instead of consecutively, where the punishment assessed is that allowed for the offense of which he was convicted.34

Where fine is imposed. Where defendant is found guilty on several counts charging separate offenses, and the penalty imposed is a fine, where the amount assessed upon each count appears in the sentence,35 or the verdict of the jury,36 it is not error for the total amount due on all the counts to be designated in the judgment. Likewise, where there is no limit as to the maximum amount the court may impose for conviction on any one count, a single judgment on a general verdict of guilty on all counts is proper,37 since it may be applicable alike to any count in the indictment.3 38

Effect of sentence on part of the counts. There can be only one judgment upon an indictment, and therefore a sentence on part of the counts in an indictment charging several offenses on which a general verdict of guilty was returned operates as an acquittal upon a discontinuance of the other counts, 42 unless an order is made at the term at which judgment is rendered continuing the case for further proceedings.43

Sentence without designating count. Where an indictment charges several distinct offenses in two or more counts it has been held that defendant cannot complain of a sentence on a general verdict which imposes punishment applicable to either offense without designating on which count it is based, because, it being impossible to say on which count the sentence applied, it would be held Wis.-In re McCormick, 24 Wis. 492, 1 AmR 197.

[§ 3033] (2) Sentence on Part of Counts.39 According to the weight of authority where, under 2 McCrany 403; U. S. v. Bennett, 24 F. Cas. No. 14,572, 17 Blatchf. 357. Ark. Toliver v. State, 35 Ark. 395. Cal.-Ex p. Dalton, 49 Cal. 463; Peo, v. Forbes, 22 Cal. 135.

Colo.-Parker v. Peo., 13 Colo. 155, 21 P 1120, 4 LRA 803.

Conn.-State v. Tuller, 34 Conn. 280. D. C.-Matter of Fry, 14 D. C. 135; In re Jackson, 10 D. C. 24.

Ill-Peo. v. Brown, 273 Ill. 169, 112 NE 462 [aff 196 111. A. 400]; Peo. v. Elliott, 272 Ill. 592, 112 NE 300; Johnson v. Peo., 83 Ill. 431; Teerney v. Peo., 81 Ill. 411; Fletcher v. Peo., 81 Ill. 116; Stack v. Peo., 80 Ill. 32; Kroer v. Peo., 78 Ill. 294; Martin v. Peo., 76 Ill. 499; Mullinix v. Peo., 76 Ill. 211; Bolun v. Peo., 73 Ill. 488; Olson v. Peo., 125 Ill. A. 460; Dachsenbuehler v. Peo., 89 Ill. A. 493.

Kan.-El Dorado v. Beardsley, 53 Kan. 363, 36 P 746; State v. Emmons, 45 Kan. 397, 26 Р 679; State V. Hodges, 45 Kan. 389, 26 P 676; State v. Carlyle, 33 Kan. 716, 7 P 623; In re Donnelly, 30 Kan, 424, 1 P 778. La.-State v. Robinson, 40 La. Ann. 730, 5 S 20.

Me. State v. Hood, 51 Me. 363. Mo.-State v. Kelley, 206 Mo. 685, 105 SW 606, 12 AnnCas 681. See State v. Brown, 66 Mo. A. 280 (holding that where two distinct nuisances are charged in two counts of an information a general judgment of a justice of the peace rendered on both counts is invalid, although if defendants do not see fit to stand upon the invalidity of the judgment, but take an appeal to the circuit court, the error will be rendered immaterial, since the cause will be thereby transferred for a trial de novo).

Nebr. Hans v. State, 50 Nebr. 150, 69 NW 838; Nichols v. State, 49 Nebr. 777, 69 NW 99; In re Walsh, 37 Nebr. 454, 55 NW 1075; Smith v. State, 32 Nebr. 105, 48 NW 823; State V. Pischel, 16 Nebr. 490, 20 NW 848. N. J.-Stephens v. State, 53 N. J. L. 245, 21 A 1038.

Oh.-Eldredge v. State, 37 Oh. St. 191; Williams v. State, 18 Oh. St. 46; Woodford v. State, 1 Oh. St. 427; Buck v. State, 1 Oh. St. 61.

Pa.-Com. v. Birdsall, 69 Pa. 482, 8 AmR 283; Com. v. Gurley, 45 Pa. 392; Com. v. Sylvester, Brightly 331. Va.-Mitchell v. Com., 93 Va. 775, 20 SE 892.

44

Eng. Castro v. Reg., 6 App. Cas. 229; Gregory v. Reg., 15 Q. B. 957, 69 ECL 957, 117 Reprint 719; Douglas v. Reg., 13 Q. B. 74, 66 ECL 74, 116 Reprint 1191; Campbell v. Reg., 11 Q. B. 799, 63 ECL 799, 116 Reprint 674; Rex v. Jones, 2 Campb. 131; Rex v. Robinson, 1 Moody C. C. 413.

See State v. Schuler, 109 Iowa 111, 113, 80 NW 213 (where the indictment charged two offenses and defendant entered a plea of "guilty of the offense charged" and a single judgment appears to have been entered, and it was held that since it was impossible to tell from the record of which offense defendant was convicted the judgment was erroneous the court saying: "That a judgment in a criminal case should be so direct and certain as that it may constitute a bar to a further prosecution for the same offense").

31. Ex p. Henry, 123 U. S. 372, 8 SCt 142, 31 L. ed. 174; Myers v. Morgan, 224 Fed. 413, 139 CCA 641; Hyde v. U. S., 198 Fed. 610, 119 CCA 493; Com. v. Foster, 122 Mass. 317, 23 AmR 326; Kite v. Com., 11 Metc. (Mass. 581; Josslyn v. Com., 6 Metc. (Mass.) 236; Booth v. Com., 5 Metc. (Mass.)

535; Cartlon V. Com., 5 Metc. (Mass.) 532. See Howard v. Moyer, 206 Fed. 555 (holding that where accused was convicted on two counts of burglarizing different post offices, in violation of Rev. St. § 5478, a single sentence imposing double the maximum penalty for a single offense, although erroneous, was not a nullity); Com. v. King, 202 Mass. 379, 88 NE 454 (holding that where defendant was convicted of various larcenies under proof showing common-law larceny, embezzlement, and false pretenses, he was properly sentenced under Rev. L. c 208 § 26, defining the punishment to be imposed on any person who steals, or who with intent to defraud obtains by false pretenses, or embezzles, converts, etc., with intent, etc., any money of another).

32. James v. Ward, 2 Metc. (Ky.) 271.

Cumulative punishment generally see infra § 3224.

33. James v. Ward, 2 Metc. (Ky.) 271.

34. Connella v. Haskell, 158 Fed. 285, 87 CCA 111; Reg. v. Carter, 9 Jur. 178.

Necessity of stating that sentences shall operate consecutively see infra §§ 3082, 3128.

35. Schraubstadter v. U. S., 199 Fed. 568, 118 CCA 42. See Kubach v. State, 25 Oh. Cir. Ct. 488 (holding that several counts for distinct offenses may be joined in one affidavit in misdemeanor cases, where imprisonment is not part of the punishment, to be followed by one trial on all the charges and a fine on each, with one sentence for the whole amount of the fine assessed on the several counts, although the accumulated penalty exceeds the maximum amount authorized to be assessed on a single violation of the statute).

36. Mitchell v. Com., 93 Va. 775, 20 SE 892.

37. State v. Darling, 77 Vt. 67, 58 A 974. 38. State v. Darling, 77 Vt. 67, 58 A 974.

39. See also supra §§ 3028, 3029. 40. U. S.-U. S. V. Pirates, 5 Wheat. 184, 5 L. ed. 64.

Ala.-Cawley v. State, 37 Ala. 152; Hughes v. State, 11 Ala. A. 307, 66 S 844.

Cal.-Peo. v. Shotwell, 27 Cal. 394.
Conn.-State v. Tuller, 34 Conn.

280.

Fla. Washington v. State, 51 Fla. 137, 40 S 765.

N. Y.-Peo. V. Trainor, 57 App. Div. 422, 68 NYS 263.

Pa.-Henwood v. Com., 52 Pa. 424; Hazen V. Com., 23 Pa. 355: Hartmann v. Com., 5 Pa. 60; Com. v. MeKisson, 8 Serg. & R. 420. 11 AmD 630; Com. v. Stahl, 1 Pa. Super. 496.

Tex.-Lovejoy v. State, 40 Tex. Cr. 89, 48 SW 520; Parks v. State, 29 Tex. A. 597, 16 SW 532.

See State v. Hall, 108 N. C. 776, 13 SE 189 (holding that where there is a general verdict of guilty on both counts of an indictment and but one sentence is imposed, the law will apply it to the verdict upon the count to which no exception was assigned).

41. Peo. v. Shotwell, 27 Cal. 394. 42. Com, v. Foster, 122 Mass. 317, 23 AmR 326.

43. Com. v. Foster, 122 Mass. 317, 23 AmR 326.

44. Com. v. Stahl, 1 Pa. Super. 496.

51. State v. Arden, 1 S. C. L. 487. Contra at common law see 1 Chitty Cr. L. p 760; 2 Hale P. C. p 143.

52. Cross references: Right to send defendant to an asylum after acquittal on ground of insanity, see Insane Persons [22 Cyc 1219].

"If a person, after verdict, and before sentence, becomes insane, it certainly is a good reason to stay the sentence; but that is not this case. We do not understand that any change in the condition of the prisoner was shown to have taken place since the impannelling of the Suspension of execution of sentence jury. It was then, in effect, requiron ground of insanity see infra §ing the court to arrest or stay the 3144. judgment, for the same reason which had been unsuccessfully urged before the jury in defence of the criminal charge." State v. Brinyea, 5 Ala. 241, 243.

53. Ala.-State v. Brinyea, 5 Ala.

D. C.-Gonzales v. U. S., 40 App. 450.

Fla.-Williams v. State, 45 Fla. 128, 34 S 279.

Ga.-Baughn v. State, 100 Ga. 554, 28 SE 68, 38 LRA 577 [aff 168 U. S. 398, 18 SCt 87, 42 L. ed. 515].

La.-State v. Potts, 49 La. Ann. 1500, 22 S 738.

N. C.-State v. Vann, 84 N. C. 722. Pa.-Com. v. Schmous, 162 Pa. 326, 29 A 644; Com. v. Buccieri, 153 Pa. 535, 26 A 228; Laros v. Com., 84 Pa. 200; Hover's Pet., 19 Pa. Dist. 512.

Wash.-State V. Nordstrom, 21 Wash. 403, 58 P 248, 53 LRA 584.

54. State v. Brinyea, 5 Ala. 241; State v. Potts, 49 La. Ann. 1500, 22 S 738; Com. v. Hays, 195 Pa. 270, 45 A 728; Hover's Pet., 19 Pa. Dist. 512. 55. State v. Brinyea, 5 Ala. 241; State v. Potts, 49 La. Ann. 1500, 22 S 738; State v. Patton, 12 La. Ann. 288; Com. v. Hays, 195 Pa. 270, 45 A 728; Hover's Pet., 19 Pa. Dist. 512.

"Here counsel for the defendant seek to reopen issues which were considered and passed upon in the trial of the case. We agree with the District Judge; those issues to the date of the conviction are now closed. In the application for the interdiction the insanity of the defendant is alleged without specially averring whether it is based upon conduct and utterances of the defendant since the trial or prior to the trial. settled if one who has committed a It is well capital offence becomes non compos mentis after conviction, he shall not be executed. But the burden was upon the defence to specially allege that the insanity had developed and become evident since the trial.' State v. Potts, 49 La. Ann. 1500, 1501,

he was called for sentence.61

some

Un

[§ 3036] (2) Statutory Provisions. In jurisdictions, when a plea of insanity is suggested after conviction, the statutes expressly authorize the court to suspend the pronouncing of sentence until this fact can be ascertained.62 They usually authorize suspension of sentence in such case, if, in the opinion of the court, there is any reasonable ground for believing defendant to be insane.68 der such a statute, the fact that a plea of insanity was interposed as a defense to the crime charged, and a verdict of guilty returned thereon, does not bar a plea of insanity at the time of sentence,64 for the reason that the verdict of the jury is conclusive merely as to his sanity at the time of the commission of the crime.65 But when defendant invokes the benefit of the provisions of such a statute, his application should show that he has become insane since the time of his trial, especially when the issue of insanity was found against him on the main trial.67

66

in order to constitute due process of law under the constitutional guaranty, that the question so presented shall be tried by a jury. The court may submit such issue to a jury even after receiving a preliminary report from a committee of medical experts.

70

[§ 3038] (2) Statutory Provisions. In some jurisdictions the statutes expressly regulate the procedure to determine defendant's sanity, when, after conviction, he files a plea asking that sentence be suspended because of such fact.1 Under some statutes, he is entitled to have the question determined by a jury when, in the opinion of the court, there is any reasonable ground for believing him to be insane.72 Under such statutes, the question whether there is reasonable ground for believing defendant insane at the time of the application is submitted to the sound discretion of the trial judge.73 Thus, where the judge entertains no doubt as to defendant's sanity, he may disregard the plea and pronounce sentence," even though defendant may have been found insane by a board of insanity and committed to an asylum for treatment;75 or even though the court, while believing defendant sane, with defendant's approval, consented to an investigation of such fact by experts instead of calling a jury.76 Further the denial of a jury trial on the question of defendant's sanity after conviction will not be disturbed by the appellate court on slight

when it was committed. Nothing
had transpired since the trial which
could cause the court to have any
reasonable doubt as to his sanity,
or authorize it to proceed under sec-
tion 4032 of the Code").

[3037] b. Right to Separate Trial by Jury(1) In General. At common law a suggestion of insanity made after conviction does not give rise to an absolute right on the part of defendant to have such issue tried before the court and a jury, but is addressed to the discretion of the judge.68 So if, after a regular conviction, a suggestion of then existing insanity is made, it is not necessary, judgment is made, and the court is requested to impanel a jury to try the question of the present insanity of defendant, supported by affidavits, on the ground that he is at present insane and incapable of answering the court as to what he had to say why sentence should not be passed on him, and the affidavits offered were made by persons who testified on his behalf at the trial and do not set up any new facts, and the trial judge had an opportunity to observe the conduct of defendant and to form an opinion, and has no doubt of the present sanity of defendant, he properly refuses the motion. Williams v. State, 45 Fla. 128, 34 S 279.

61. Com. v. Schmous, 162 Pa. 326, 29 A 644; Com. v. Buccieri, 153 Pa. 535, 26 A 228; Hover's Pet., 19 Pa. Dist. 512.

62. Johnson v. State, 97 Ark. 131, 133 SW 596; Ince v. State, (Ark.) 88 SW 818; State v. Helm, 69 Ark. 167, 61 SW 915; Rankin v. San Francisco Super. Ct., 157 Cal. 189, 106 P 718; Peo. v. Knott, 122 Cal. 410, 55 P 154: Gonzales v. U. S., 40 App. (D. C.) 450; Wagner v. White, 38 App. (D. C.) 554; State v. Cooper, 169 Iowa 571, 151 NW 835; Springer v. State, 63 Tex. Cr. 266. 140 SW 99; Stover v. Com., 92 Va. 780, 22 SE 874.

63. Ince v. State, (Ark.) 88 SW 818; State v. Helm, 69 Ark. 167, 61 SW 915; Peo. v. Knott, 122 Cal. 410, 55 P 154; Peo. v. Pico, 62 Cal. 50; Peo. v. Stock, 19 Cal. A. 748, 127 P 798; Springer v. State, 63 Tex. Cr. 266, 140 SW 99.

818.

67. Springer v. State, 63 Tex. Cr. 266, 140 SW 99; Stover v. Com., 92 Va. 780, 22 SE 874.

68. Ú. S.-Nobles v. Georgia, 168 U. S. 398, 18 SCt 87, 42 L. ed. 515. Fla.-Williams V. State, 45 Fla.

128, 34 S 279.

Ga.-Baughn v. State, 100 Ga. 554, 28 SE 68, 38 LRA 577 [aff 168 U. S. 398, 18 SCt 87, 42 L. ed. 515]; Spann v. State, 47 Ga. 549.

La.-State v. Eighth Judicial Dist.
Judge, 48 La. Ann. 503, 19 S 475;
State v. Reed, 41 La. Ann. 581, 7 S
132. And see In re State, 45 La.
Ann. 696, 12 S 884 (holding that, if
authority to grant a jury hearing
of the issue is necessary, it can be
found in Rev. St. § 1768. where the
judge is authorized to ingraft upon
the criminal proceedings in his court
not yet closed the proceedings pro-
vided for in that section, and, in the
absence of a direct mode of proce-
dure being exacted, to mold it to
correspond with the analogous meth-
ods of proceeding resorted to for the
purpose of the trial of special is-
sues).

N. C.-State v. Vann, 84 N. C. 722.
Pa.-Laros v. Com., 84 Pa. 200.
Tenn. Bonds v. State, Mart. & Y.
143. 17 AmD 795.

Wash.-State v. Peterson, 90 Wash.
479, 156 P 542; State v. Nordstrom,
21 Wash. 403, 58 P 248, 53 LRA 584.

64. Ince v. State, (Ark.) 88 SW 818; Johnson v. State, 97 Ark. 131, 133 SW 596. 65. Ince v. State, (Ark.) 88 SW 66. Springer v. State, 63 Tex. Cr. 266, 140 SW 99. See Stover v. Com., 92 Va. 780, 787, 22 SE 874, 876 (where the court said: "The court properly refused, after the verdict of the jury had been rendered, to empanel another jury to determine the sanity of the accused. That question had been directly put in issue upon the trial of the case, and the jury, in finding him guilty of the offence charged, necessarily found that he was sane P 154; Peo. v. Pico. 62 Cal. 50.

Eng. 4 Blackstone Comm. pp 395, 396: 1 Chitty Cr. L. p 761; 1 Hale P. C. pp 33-35; 1 Hawkins P. C. c 1 § 4.

69. Nobles v. Georgia, 168 U. S. 398, 18 SCt 87, 42 L. ed. 515; Baughn v. State, 100 Ga. 554, 28 SE 68, 38 LRA 577 [aff 168 U. S. 398, 18 SCt 87. 42 L. ed. 515].

70. In re State, 45 La. Ann. 696, 12 S 884.

71. Ark.-Johnson V. State. 97 Ark. 131, 133 SW 596; Ince v. State, 88 SW 818; State v. Helm, 69 Ark. 167, 61 SW 915.

Cal-Peo. v. Knott, 122 Cal. 410, 55

74

D. C.-Gonzales v. U. S., 40 App. 450; Wagner v. White, 38 App. 554. Ga-Sears v. Candler, 112 Ga. 381, 37 SE 442.

Iowa.-State v. Cooper, 169 Iowa 571, 151 NW 835.

Okl.-Ex p. Maass, 10 Okl. 302, 61 P 1057.

72. Johnson v. State, 97 Ark. 131, 133 SW 596; Ince v. State, (Ark.) 88 SW 818; State v. Helm, 69 Ark. 167, 61 SW 915; Peo. v. Knott, 122 Cal. 410, 55 P 154; Peo. v. Pico, 62 Cal. 50; Peo. v. Stock, 19 Cal. A. 748, 127 P 798; State v. Cooper, 169 Iowa 571, 151 NW 835.

[a] "The reason for the rule for prohibiting the trial while he is insane is the incapacity of one who is insane to make a rational defense, and for prohibiting the pronounce ment of judgment against him while he is insane is, if sane, he might be able to show cause why judgment should not be pronounced against him, but, being insane, though having a sufficient cause, he might not make it known. The statute being an affirmance of the common-law rule, the reason on which the rule rests furnishes a key to what must have been the intention of the legState v. islature in adopting it." Helm, 69 Ark. 167, 173, 61 SW 915.

[b] "A mere suggestion of insanity of the defendant does not necessarily call for the impaneling of a jury, but the court must first inquire for reasonable grounds for believing him to be insane, and . . . in the absence of any showing, we must indulge the presumption that the court found nothing which justified the inquiry." Duncan v. State, 110 Ark. 523, 527, 162 SW 573.

73. Peo. v. Knott, 122 Cal. 410. 55 P 154; Gonzales v. U. S., 40 App. (D. C.) 450; Ex p. Maass 10 Okl. 302, 61 P 1057.

74. Peo. v. Knott, 122 Cal. 410, 55 P 154; Peo. v. Pico, 62 Cal. 50; Gonzales v. U. S., 40 App. (D. C.) 450; State v. Cooper, 169 Iowa 571. 151 NW 835; Ex p. Maass, 10 Okl. 302, 61 P 1057.

75. Ex p. Maass, 10 Okl. 302, 61 P 1057.

76. Peo. v. Stock, 19 Cal. A. 748, 127 P 798.