People v. Forbes

Norton, J. delivered the opinion of the Court—Cope, C. J. and Crocker, J. concurring. The defendant is held in custody by virtue of five separate sentences passed upon him on the sixth day of September, 1862, by the Recorder’s Court of the City and County of San Francisco. One adjudges that he be imprisoned for the period of ninety days. Each of the others adjudges that he be imprisoned for the period of ninety days, “ said term to commence at the expiration of previous sentences.” Having been imprisoned more than ninety days, he claims now to be discharged, upon the ground that the sentences to commence at the expiration of previous sentences are void, for not fixing any definite time for the commencement of the imprisonment.

As a general rule, a judgment should be certain and definite, and complete in itself, so that what it requires to be done may be known without resort to anything outside the record, yet it seems to have been a common practice in criminal Courts to enter judgments of imprisonment to commence at the expiration of sentences in other cases. (King v. Wilkes, 4 Burr, 2575; Commonwealth v. Leaths, 1 Virg. Cases, 151; State v. Smith, 5 Day, 175; Russel v. Commonwealth, 7 Serg. & Rawle, 489; Brown v. Commonwealth, 4 Rawle, 259.)

In the case of Brown v. Commonwealth, the sentence was that the defendant’s imprisonment should begin “ immediately after the expiration of the sentence passed upon him for the larceny of the goods ,of Hiram Jones.” The judgment for the larceny of the goods of Hiram Jones was reversed on appeal, and it was claimed that the other judgment thereby became a nullity. But it was decided that the judgment in the one case being in force until it was reversed, the expiration of the sentence occurred upon its reversal and that the second imprisonment began from that time. In that [138]case, therefore, a sentence was held valid which was not only indefinite on its face, and could only be made definite by resorting to the record in another case, but in which the time of commencement of the sentence was changed by an occurrence happening in the other case after the sentence had been pronounced.

It is further objected in the case before us that the subsequent sentences do not refer to any other particular sentence, and are thus not only indefinite themselves but do not point to any certain means by which they may be made definite, or by which the time of the commencement'of the imprisonment can be ascertained. We have not found any case in which the sentence was in the general language used in this case, to wit: “ Said term to commence at the expiration of previous sentences.” In the State of Hew York it is provided by statute, that in case of two or more convictions before sentence on either, the term of imprisonment upon the second or subsequent conviction shall commence at the termination of the previous term of imprisonment. (2 Rev. St. of N. Y. 700.) In regard to this provision, the revisers say it is “ generally declared in the sentence, but as it may be omitted it is deemed useful to provide for it by law.” It would seem that under this statute, in that State, if, in the case of two or more convictions, the sentences should be in terms simply for a specified time of imprisonment, saying nothing as to the time of its commencement or as to any former conviction, the term of the second imprisonment would commence at .the termination of the first. The effect of this is that under a commitment on such a second judgment the officer would justify the imprisonment of the defendant by showing that the term of imprisonment did not commence at the date of the judgment or commitment in consequence of the existence of a prior judgment, but which was not mentioned in the second. We have no statute of- exactly the same import in our State, but we may deduce the inference from the enactment of such a statute in Hew Yorko upon the recommendation of a commission of eminent and experienced jurists, that it is not an anomaly in criminal proceedings that the tinae of commencement of a term of imprisonment should depend upon the existence of other judgments not specified and to be ascertained only by referring to the records of the Court. If a judg