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By the act of 1861,1 it is made the duty of the sheriff to transmit to the secretary of State a statement showing the name, occupation, age, sex and native country of the persons convicted of any offence at a criminal court of record; and for the purpose of obtaining this information, the court generally, before proceeding to pass the sentence, and at the same time the inquiries are made in relation to the learning and practicing of a mechanical trade by the convict, ascertains these facts from the convict himself. An oath is generally administered to the convict by the clerk, to make true answers to such questions as shall be put to him by the court, touching his name, occupation, age, place of nativity, and his having learned or practiced any mechanical trade, and the proper entry of the prisoner's answers are then made upon the minutes of the court.

In all cases of felony, before passing the sentence, the court should demand from the defendant what he has to say why judg ment should not be pronounced against him, and the fact that the defendant was present, and that such demand was made, ought to appear from the record.2

On this occasion, he may allege ground in arrest of judgment or may plead a pardon, if he has obtained one, for it will have the same consequence which it would have had before conviction;3 and if he has nothing to urge in bar, he frequently addresses the court, in mitigation of his conduct, and desires its intercession with the pardoning power, or casts himself upon their mercy; after this, nothing more is done, but the presiding judge pronounces the sentence.4

If, by inadvertance in passing the sentence, a requirement of the statute has been overlooked the court may correct the judg ment at the same term and before the sheriff has proceeded to execute it; such correction may be made by expunging or vacating the first sentence and passing a new sentence.5

No court has authority to suspend sentence indefinitely against criminals who have been found guilty by a jury or have pleaded guilty; a suspension of sentence or stay is not authorized, except

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upon a certiorari or writ of error, or an application in arrest of judgment or for a new trial.1

After the verdict of the jury has been rendered it is sometimes the practice to submit affidavits to the court in mitigation of the punishment, when such are presented they should not controvert the facts upon which the verdict is founded.2

In a prosecution for assault and battery, the court will receive affidavits in mitigation of the punishment, from the defendant after conviction, and affidavits in aggravation from the prosecution; but, in the absence of affidavits in mitigation, those in aggravation should not generally be received.3

The service of affidavits, in such cases upon the opposite party, is not required.4

129. OF THE SENTENCE OR JUDGMENT.

The judgment is the conclusion and sentence of the law, passed by the court upon facts found or admitted in the course of the criminal proceedings against a party, and it must not be dependent upon any contingency nor subject to any future decision, but must be unconditional. Thus, a sentence of the defendant to the work-house until released by order of law, is erroneous, since it is for an indefinite time."

A joint sentence may be, and frequently is, passed on several offenders convicted of similar offences.8

Where a party, convicted of an offence, is subject to two distinct and independent punishments, it cannot be alleged for error by the defendant, that only one of the punishments to which he is liable is adjudged against him; the prosecutor may complain of such omission, but not the party convicted.9

In an indictment against two or more, it is generally true that the charge is several as well as joint; so that if one is found guilty, judgment may be rendered against him, though one or

Peo. v. Morresette, 20 How., 118.

' Rooney's Case, 3 City H. R., 128; Ball's Case, 4 Id., 113.

'Hagerman's Case, 3 City H. Rec., 73, 89.

• Id.

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Burn's Just., tit., Judgment.

⚫ State v. Bennett, 4 Dev. & Batt., 43; Morris v. State, 1 Blackf., 37. Washburn v. Bellknap, 3 Conn., 50.

1 Chit. Cr. L., 700; 2 Burr., 984; 6 Harg. St. Tr., 833.

Kane v. Peo., 8 Wend., 203.

more be acquitted; to this rule, however, there are exceptions, as in cases of conspiracy or riot, to which the agency of two or more is essential.1

Judgment is rendered in the court in which the defendant is convicted, except where an indictment has been removed from a court of oyer and terminer, or any other court, into the Supreme Court, and a conviction is had thereon at a circuit court; judg ment may be rendered thereon by such circuit court or any other circuit court, which may be held in the same county, with the same effect as a court of oyer and terminer may render judgment upon a conviction had therein.2

But whenever, after conviction upon any indictment, the record thereof shall be removed from any other court into the Supreme Court, for the purpose of review, the Supreme Court shall, upon affirming or reversing the judgment or other proceedings, remit the record to the court from which the same was removed, and the court to which the same shall be so remitted, shall have power to proceed thereon according to the decision and discretion of the Supreme Court.3

An offence in regard to which there is a discretion vested in the court to punish it either by imprisonment in the State prison, . or by fine or by imprisonment in the county jail, is within the statutory definition of felony. If the offender, on conviction, be liable to imprisonment in the State prison, he is guilty of felony, though he be also liable to the infliction of less severe punishment.*

§ 130. SENTENCE TO EXPIRE BETWEEN MARCH AND NOVEMBER. In cases where convicts are sentenced to imprisonment in the State prison for a longer period than one year, the court before whom the conviction shall be had, are directed to so limit the time of sentence that it will expire between the month of March and the month of November, unless the exact period of the sentence may be fixed by law.5

The above provision is merely directory, and a failure to comply with such direction, does not render the sentence void."

1 Com. v. Griffin, 3 Cush., 523.

• 2 R. S., 747, § 25; Laws 1859, ch. 462, § 1, p. 1074.

Laws 1859, ch. 462, p. 1074, § 2.

• Peo. v. Van Steenburgh, 1 Park., 39.

2 R. S., 700, § 13; Laws 1836, ch. 171 § 6; Laws 1862, ch. 417. Miller v. Finkle, 1 Park., 374.

In cases of forcible entry, if the force be continuing, or the prosecutor expelled, part of the judgment is that the prosecutor have restitution of his premises. In cases of a public nuisance, if it be continuing, part of the judgment is that it be abated. If an offender be adjudged to pay a fine, and also to be imprisoned, then, although he is imprisoned, the fine may be levied also, if he have any property upon which to levy it.1

Fines are the lowest species of punishment which courts of justice have power to inflict. At one time, they formed almost the only penalty to which the opulent were liable; when murder itself was commuted, by a sum of money; when judges were in many cases mere agents for the crown and collectors for the treasury.2

§ 131. SENTENCE WHEN THERE ARE SEVERAL CONVICTIONS AT THE

SAME TIME.

When any person shall be convicted of two or more offences, before sentence shall have been pronounced upon him for either offence, the imprisoment to which he shall be sentenced upon the second or other subsequent conviction, shall commence at the termination of the first term of imprisonment to which he shall be adjudged, or at the termination of the second term of imprisonment, as the case may be.3

§ 132. COURTS TO EXAMINE CONVICTS AS TO THEIR HAVING LEARNED

A TRADE.

It shall be the duty of the court in which any person shall be convicted of an offence punishable in a State prison, before passing the sentence, to ascertain by the examination of such convict on oath, and in addition to such oath, by such other evidence as can be obtained, whether such convict had learned and practiced any mechanical trade, and the clerk of the court shall enter the facts as ascertained and decided by the court on the minutes thereof, and shall deliver a certificate stating the facts as ascertained to the sheriff of the county, who shall cause the same to be delivered to the warden of the proper prison, at the same time that such convict is delivered to the said warden pursuant to his sentence.*

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§133. PERSONS UNDER SIXTEEN YEARS OF AGE MAY BE SENTENCED

TO THE HOUSE OF REFUGE.

Whenever any person, under the age of sixteen years, shall be convicted of any felony or other crime, the court, instead of sentencing such person to imprisonment in a State prison or county jail, may order that he be removed to and confined in the house of refuge established by the Society for the Reformation of Juvenile Delinquents in the city of New York, unless notice shall have been received from such society that there is not room in such house for the reception of further delinquents.1

The above provision of the statute, however, is applicable only to such delinquents sentenced in the first, second and third judicial districts of this State; for, by a subsequent act, it is made the duty of the several courts, having criminal jurisdiction, who shall hold courts in the fourth, fifth, sixth, seventh and eighth judicial districts of this State, to order all juvenile delinquents, by them respectively sentenced, to be removed to the "Western House of Refuge for Juvenile Delinquents," in the city of Rochester.2

It is the duty of courts of criminal jurisdiction in the several counties, which are designated as the counties from which juvenile delinquents are to be sent to the house of refuge, to ascertain, by such proof as may be in their power, the age of every delinquent by them respectively sentenced to the said house of refuge, and to insert such age in the order of commitment, and the age thus ascertained shall be deemed and taken to be the true age of such delinquent.3

In cases where any such court shall omit to insert in the order of commitment the age of any delinquent committed to the said house of refuge, the managers shall, as soon as may be, after such deliquent shall be received by them, ascertain his age by the best means in their power, and cause the same to be entered in a book to be designated by them for that purpose, and the age of such delinquent thus ascertained shall be deemed and taken to be the true age of such delinquent.4

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