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who has pleaded guilty.12 A'motion in arrest of judgment will not be granted because of mere technical defects in the indictment, which do not tend to prejudice the defendant; 18 nor because of defects or uncertainties therein, which might be fatal upon a motion to quash, when it contains allegations of all the essential elements of the crime charged; 14 nor, for misjoinder or duplicity.15 Where there is a general verdict of guilty, and the indictment contains several counts, of which only one is good, the judgment will not be arrested, if the evidence is sufficient to support the good count.16 Nor, at least when no exception was taken at the time, will such a motion be granted for errors or irregularities in the conduct of the trial,17 and as the fact that the indictment was not sent to the jury room, when it was in court during the trial and was read to the jury; 18 or a failure to read the indictment to the jury, when the accused did not demand that it be read; 19 or the insufficiency of the evidence to support the verdict.20

A motion in arrest of judgment will be granted when, in the case of a felony at least, a verdict was rendered in the absence of the defendant,21 provided that a prompt objection upon this ground was made.22

Upon a motion in arrest of judgment, the court will not look beyond the record,23 of which the evidence forms no part,24 not even into a stipulation admitting certain facts.25

12 Moore v. State, 53 Nebr. 831, 74 N. W. 319.

13 Baker v. U. S., C. C. A., 231 U. S. 388; U. S. v. Chase, 27 Fed. 807; Schraubstadter v. U. S., C. C. A., 199 Fed. 568.

14 U. S. v. Kilpatrick, 16 Fed. 765. 15 U. S. v. Bayaud, 16 Fed. 376, 21 Blatchf. 287; Paul v. U. S., C. C. A., 127 Fed. 509; Chitty's Criminal Law, I, p. 253, 12 Cyc. 762.

16 U. S. v. Potter, 6 McLean 186, Fed. Cas. No. 16,078; cf. U. S. v. Fischer, 245 Fed. 423.

17 Chitty's Criminal Law, I, p. 661, 12 Cyc. 759.

18 U. S. v. Angell, 11 Fed. 34.

19 U. S. v. Bickford, 4 Blatchf. 337, Fed. Cas. No. 14,591.

20 DeMolli v. U. S., C. C. A., 144 Fed. 363; U. S. v. Maxey, 200 Fed. 997; U. S. v. Erie R. Co., 222 Fed. 444, 447; Towe v. U. S., C. C. A., 238 Fed. 557.

21 U. S. v. McClure, 107 Fed. 268. 22 U. S. v. Shepherd, 1 Hughes 520, Fed. Cas. No. 16,274.

23 U. S. v. Barnhart, 17 Fed. 579, 9 Sawyer 159. See U. S. v. Holt, 168 Fed. 141; U. S. v. Erie R. Co., 222 Fed. 444, 447.

24 De Molli v. U. S., C. C. A., 144 Fed. 363; U. S. v. Maxey, 200 Fed. 997.

25 U. S. v. Barnhart, 17 Fed. 579, 9 Sawyer 159.

The failure of the defendant to demand a bill of particulars does not deprive him of the right to move in arrest of judgment because of a defect in the indictment.26

Where, after a motion in arrest of judgment, the defendant forfeited his bail and absconded, the court refused to decide. the motion in his absence.27

Such a motion should be made before sentence.28 It cannot be made after the term at which the sentence was entered has expired.29

A motion in arrest of judgment is part of the record.30 It should not be incorporated in the bill of exceptions.31 It has been said that it is not assignable as error,32 and that it is not reviewable by writ of error.33

§ 532. Sentence and judgment in criminal cases. Ordinarily, the sentence is pronounced by the judges who presided at the trial; but, in an extraordinary case, where the jurisdiction is not lost, it seems that the judge sitting at a regular term of the court may pass sentence, although the conviction was had at another term and before him and another judge.1

The sentence must be imposed in the presence of the defendant. It cannot be altered or corrected in his absence. Except, perhaps, in a capital case, it is unnecessary for the court to ask the prisoner if he has anything to say before the sentence is pronounced. In one case after verdict of guilty, the court took testimony, for the purpose of information, as to the amount of the fine that should be imposed upon the corporation, which was the defendant.5

The judgment should be entered at the trial term but in

26 U. S. v. Tubbs, 94 Fed. 356. 27 U. S. v. Erskine, 4 Cranch C. C. 299, Fed. Cas. No. 15,057.

28 McInerney v. U. S., C. C. A., 147 Fed. 183.

29 Ibid.

30 Collins v. U. S., C. C. A., 219 Fed. 670, 674.

31 Ibid.

32 Beyer v. U. S., C. C. A., 251 Fed. 39.

33 Andrews V. U. S., C. C. A.,

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224 Fed. 48. But see the authorities
cited under this section passim.
§ 532. 1 U. S. V. Gordon,
Blatchf. 18, Fed. Cas. No. 15,231;
U. S. v. May, 2 McArthur 512.

2 Turner v. U. S., C. C. A., 66
Fed. 287, 289, 13 C. C. A. 443, 445.
3 Price v. Zerbst, 268 Fed. 73.
4 Ibid.

5 U. S. v. Standard Oil Co. of Indiana, 155 Fed. 305, 317.

6 Kreuzer v. U. S., C. C. A., 254 Fed. 34, 36, 39.

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the interest of justice the imposition of the sentence and the entry of judgment may be postponed for one or more definite periods of time.7 Where the judgment is void a new judg ment may be entered at a subsequent term. A valid judgment which has been entered cannot at a subsequent term be vacated.9 A void judgment may lawfully be cancelled on motion after notice even after expiration of the term at which it was entered.10 A judgment convicting a defendant of a crime for which there is no statutory authority, although entered on a plea of guilty, and the fine imposed has been paid, is void.11

The time when the sentence of imprisonment shall commence, although specified in the judgment, is no part thereof and may be changed at a subsequent term if for any reason execution thereof has been delayed.12 Where a fine has been imposed and paid, the court cannot even at the same term modify the judgment by imposing imprisonment instead of the former sentence; 13 nor after he has served part of a term in a county jail as directed by a sentence can the judgment be modified at the same, or at a subsequent term so as to impose a longer imprisonment in a penitentiary of the United States.14 The court may impose sentence upon some of the counts upon which a conviction has been obtained, postpone sentence on the other counts to a subsequent term and then impose an additional sentence therefor, although in the meantime a writ of error and supersedeas upon the former sentence has been obtained.15

The judgment in a criminal case, in which two defendants are jointly tried and jointly convicted, must be several and not joint; 16 except so far as the costs are concerned, for which, perhaps, a joint judgment might be entered.17

7 Minor v. U. S., C. C. A., 244 Fed. 422; Kreuzer v. U. S., C. C. A., 254 Fed. 34, 36, 39; Anderson v. Denver, C. C. A., 265 Fed. 3. 8 Bryant v. U. S., C. C. A., 214 Fed. 51.

9 U. S. v. Mayer, 235 U. S. 55. 10 Mossew v. U. S., C. C. A., 266 Fed. 18.

11 Ibid.

12 Bernstein v. U. S., C. C. A., 254 Fed. 966.

Fed. Prac. Vol. III-42

13 Ex parte Lange, 18 Wall. 163, 21 L. ed. 872.

14 Blackman v. U. S., C. C. A., 250 Fed. 449.

15 Kreuzer v. U. S., C. C. A., 254 Fed. 34, 36, 39.

16 U. S. v. Ismenard, 1 Cranch C. C. 150, Fed. Cas. No. 15,450. 17 Calico v. State, 4 Ark. 430.

Where two indictments for offenses under the same statute have been consolidated, the court may sentence each defendant to the whole statutory term.18

21

Where there is a general verdict of guilty under an indictment, with two or more counts charging different crimes of the same character and growing out of the same transaction, even if they differ in degree, the sentence must impose a single penalty.19 But, where there is a general verdict, upon two or more counts charging crimes of the same character arising out of distinct and separate transactions, a separate penalty may be imposed for each count.20 Where judgment is imposed for a specified term of imprisonment upon different, counts, it is a single sentence.2 A separate term for each count must be specifically stated by the court in the sentence; 22 and whether it is the intention of the court that the term shall be consecutive or concurrent, should be stated in the judgment.23 Where a cumulative sentence is imposed after conviction upon an indictment containing several counts and the imprisonment inflicted is shorter than might have been imposed upon all the counts but longer than the statutory penalty for one, it will not be limited to the maximum for a single count, although it uses the word "concurrently." 24 Where the sentence after such a conviction was silent in this respect, it was presumed that the terms were concurrent.25 Upon a verdict of guilty of several counts it is error to impose the sentence for a certain period in gross, which is in excess of the statutory penalty

18 Turner v. U. S., C. C. A., 66 Fed. 280, 13 C. C. A. 436.

19 Burton v. U. S., 202 U. S. 344, 379, 26 Sup. Ct. 688; Ex parte Joyce, Fed. Cas. No. 7,556; Ulmer v. U. S., C. C. A., 219 Fed. 641 (repetition of the same false statement upon the same examination); Charley Toy v. U. S., C. C. A., 266 Fed. 326; manufacture of smoking opium without compliance with statutory requirements.

20 U. S. v. Bennett, 17 Blatchf. 357, Fed. Cas. No. 14,572; Re Greenwald, 77 Fed. 590; U. S. v. Carpen

ter, C. C. A., 9 L. R. A. (N. S.) 1043, 151 Fed. 214; U. S. v. Peeke, C. C. A., 153 Fed. 166; U. S. v. Phelan, 250 Fed. 927.

21 U. S. v. Thompson, 202 Fed. 346.

22 U. S. v. Bennett, 17 Blatchf. 357, Fed. Cas. No. 14,572; Re Greenwald, 77 Fed. 590.

23 Kirkman v. McClaughry, 152

Fed. 255.

24 Brinkman v. Morgan, C. C. A., 253 Fed. 553.

25 Kirkman v. McClaughry, 152 Fed. 255.

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for a single crime.26 Another court cannot cure the defect by apportioning the term upon the different counts; 27 after serving the lawful part of the term, the prisoner may be discharged upon habeas corpus,28 unless the term of the court, at which the judgment was entered, has not yet expired, in which case, before the discharge of the prisoner, an opportunity to correct the sentence might be afforded.29 Where the prisoner was sentenced to three successive terms of imprisonment upon different counts, and the sentence for the second or middle term was void, it was held that the third term began at once upon the expiration of the first.30

Where a prisoner convicted for two offenses was sentenced to a term of imprisonment for each offense, the terms to run concurrently, and the statute required that the terms of the imprisonment should be cumulative; it was held that, since the error did not prejudice the convict, he should not be discharged by habeas corpus.3

The plaintiff in error cannot complain because the statute directed that he be punished by fine and imprisonment and no fine was imposed upon him,82 nor because different punishment is imposed upon him from that prayed in the information; 33 but where the statute directed that the imprisonment be at hard labor, it was held that it was error to omit the direction for hard labor.34 The judgment was consequently reversed and remanded in order that the proper punishment might be imposed.85 Where the statute does not authorize imprisonment at hard labor upon habeas corpus, the trial court can amend

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