§ 633. We have seen,1 that the entire act of the defendant may include a larger field of wickedness than is embraced in the indictment. So there may be various circumstances of aggravation, on the one hand, or of mitigation, on the other. When, therefore, the court pronounces sentence, if the law leaves to it a discretion, it looks at any evidence proper to influence a judicious magistrate to make the punishment heavier or lighter,2 yet so as not to exceed the limits pre scribed for the offence as charged in the indictment, and established by the verdict of the jury. Guilt is not in this issue to be denied, the verdict being conclusive; and there. fore testimony will not be heard tending to prove, that no crime in law was committed. Yet if the defendant merely enters, by permission, a plea of nolo contendere, he seems to be allowed to show under this plea his innocence.5

§ 634. The English common law rule seems to be, that

t

i

Blackf. 529; The State v. Douglass, 1 Greene, Iowa, 550; Nemo v. Commonwealth, 2 Grat. 558; Ervine v. Commonwealth, 5 Dana, 216; Hawkins v. The State, 3 Stew. & P. 63; Chesley v. Brown, 2 Fairf. 143, 147; Blevings v. People, 1 Scam. 172.

3. Ante, § 530, 533, 534.1

The State v. Townsend, 2 Harring. Del, 543; Robbins v. The State, 20 Ala. 36; Rex v. Mahon, 4 A. & E. 575; Rex v. Lynn, 2 T. R. 733; Rex v. Grey, 2 Keny. 307; Wilson v. The Mary, Gilpin, 31; Rex v. Turner, I Stra. 139; Rex v. Burdett, 4 B. & Ald. 314; The State v. Smith, 2 Bay, 62; Rex v. Sharpness, 1 T. R. 228; Rex v. Withers, 3 T. R. 428; Rex v. Williams, Lofft, 759; Rex v. Pinkerton, 2 East, 357; Rex v. Mawbey, 6 T. R. 619, 627. See Rex v. Cox, 4 Car. & P. 538; Rex v. Esop, 7 Car. & P. 456; People v. Cochran, 2 Johns. Cas. 73.

Rex v. Withers, 3 T. R. 428, 432; ante, § 620.

The State v. Brinyea, 5 Ala. 241; 2 Gab. Crim. Law, 540.

5 Reg. v. Templeton, 1 Salk. 55, in which case it is said, that Lord Holt, C. J., "took a difference where a man confesses an indictment, and where he is found guilty; in the first case a man may produce affidavits to prove [this was for assault and battery] son assault upon the prosecutor în mitigation of fine; otherwise, when the defendant is found guilty." See also Rex v. Minify, 1 Stra. 642. [648]

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the evidence mentioned in the last section can be produced in cases of misdemeanor only, not of felony. And such is doubtless the true view, when the felony is punished by hang ing for of hanging there can be no mitigation. But if the court has a discretion, the practice ought, on principle, to be the same in the higher crimes as in the lower; and so it is in Massachusetts, and probably elsewhere generally in the United States. }.

I

an§ 635. The day on which death or other corporal pain is to be inflicted, is not a material part of the judgment of the court. It need not be inserted in the judgment;? if it is not, it may be mentioned in the warrant; or, if it is in the judg, ment, and execution fails to be done on that day, as where the sheriff dies, or the prisoner escapes, being afterward retaken, the court may direct it to be done on a subsequent day. And if a statute defines the time after conviction, or after any other period, within which sentence shall be executed, the statute is to be construed as merely directory to the court, and the execution may be on a later day;6 though, if the prisoner is not to be executed until after a period named, he may claim the space thus allowed him.

§ 636. When a prisoner, under an unexpired sentence of imprisonment, is convicted of a second offence; or when there are two or more convictions, on which sentence remains

Rex v. Ellis, 9 D. & R. 174, 6 B. & C. 145.

Atkinson v. Rex, 3 Bro. P. C. 517; Rex v. Wyatt, Russ. & Ry, 230; Rex v. Doyle, 1 Leach, 4th ed. 67. And see Webster v. Commonwealth, 5 Cush. 386, 407; Rex v. Hertnett, Jebb, 302.

3 Rex v.

Doyle, 1 Leach, 4th ed. 67.

4 The State v. Kitchen, 2 Hill, S. C. 612.

Bland v. The State, 2 Cart. Ind. 608.

Seaborn . The State, 20 Ala, 15; Rex v. Wyatt, Russ. & Ry. 230; ante,

6

§ 152.

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'John v. The State, 2 Ala. 290.

230.

to be pronounced; the judgment may direct, that each succeeding period of imprisonment shall commence on the termination of the period next preceding.1 And if, in such a case, the earlier period is afterward shortened by a pardon of the offence, or a reversal of the sentence on writ of error, the next following one commences immediately, the same as if the earlier were ended by lapse of time.2

§ 636 a. There remains the further question, whether, where there are several defendants jointly convicted, they are to receive but one punishment, to be borne by them jointly, after the manner of damages in civil cases; or whether each defendant is to have imposed on him the full penalty, the same as if he had done the act alone, and had been convicted thereof alone. When we look at this question in the light of principle we see, that the latter rule must prevail; because, the act being done, the criminality of it depends upon the intent, which intent lay a complete thing of wrong in the bosoms of the defendants severally, each one of whom is as guilty as if the others were not guilty. And we shall see, that this rule is established also by the decisions.

§ 637. Looking therefore at this matter in the light of the

1 Commonwealth v. Leath, 1 Va. Cas. 151; Mills v. Commonwealth, 1 Harris, Pa. 631, 634; The State v. Smith, 5 Day, 175; Wilkes v. Rex, 4 Bro. P. C. 360, 367; Kite v. Commonwealth, 11 Met. 581. And see Rex v. Bath, 1 Leach, 4th ed. 441; Cole v. The State, 5 Eng. 318. As to the rule where there are convictions on several counts of one indictment, compare Rex v. Robinson, 1 Moody, 413, and Gregory v. Reg. 15 Jur. 79, 19 Law J. N. s. Q. B. 366, with Carlton v. Commonwealth, 5 Met. 532, and Booth v. Commonwealth, 5 Met. 535; and see Baker v. The State, 4 Pike, 56; Barnes v. The State, 19 Conn. 398; Rex v. Tandy, 2 Leach, 4th ed. 833, 1 East P. C. 182; Crowley v. Commonwealth, 11 Met. 575; Kite v. Commonwealth, 11 Met. 581; Josslyn v. Commonwealth, 6 Met. 236; Commonwealth v. Kirk, 9 Leigh, 627; The State v. Turner, 2 McMullan, 399; Townsend v. People, 3 Scam. 326; The State v. Davidson, 12 Vt. 300; The State v. Lassley, 7 Port. 526; Friar v. The State, 3 How. Missis. 422.

2 Kite. Commonwealth, 11 Met. 581; Brown v. Commonwealth, 4 Rawle, 259.

decisions, we have seen, that the object of a civil suit is to recover damages for an injury done to the individual bringing it; while a criminal prosecution is for punishment, and the cure of a public wrong; and we have noticed some distinctions growing out of this diversity.1 Consequently, in

3

the civil suit, the plaintiff can recover the loss or damage he has sustained only once, however many may be the persons against whom he proceeds. But, in the criminal law, each man whose will contributes to a criminal thing, though done by another, is to be deemed guilty of it the same as though his own hand executed it; and he is to be punished accordingly.2 We have even seen, that, in some cases, the mere combining with others will make a man indictable, when he would not be if he had undertaken, and even performed, the same wrong singly. But aside from this doctrine of conspiracy, where two or more are indicted for the same offence jointly, and convicted, the sentence against them is several, each to pay 'the whole forfeiture, or suffer the whole of whatever other penalty or punishment the law provides, precisely as if he were the only person who had participated in the act.4

§ 638. The doctrine is different where a penalty is to be recovered in a proceeding civil in form, as for instance in a qui tam action, though the thing done is in its nature criminal.

1 Ante, § 237, 241, 314, 327, 340-345, 348.

2.2 East P. C. 740; Reg. v. King, 1 Salk. 182; Commonwealth v. McAtee, 8 Dana, 28; The State v. Smith, 1 Nott & McCord, 13; Reg. v. Atkinson, 2 Ld. Raym. 1248, 1 Salk. 382, 11 Mod. 79, as to which see the report in Mod. where Holt, C. J., said, "but they shall severally have judgment;" Godfrey's case, 11 Co. 42 a, 1 Ro. 32, 35; The State v. Smith, 1 Nott & McCord, 13; United States v. Babson, Ware, 450; The State v. Hopkins, 7 Blackf. 494; The Stater. Berry, 21 Misso. 504.

3 Ante, § 437,

Caldwell v. Commonwealth, 7 Dana, 229; The State v. Gay, 10 Misso. 440; Jones v. Commonwealth, 1 Call, 555; Commonwealth v. Ray, 1 Va. Cas. 262; Rex v. Morris, 2 Leach, 4th ed. 1096; Commonwealth v. Harris, 7 Grat. 600; Calico v. The State, 4 Pike, 430; The State v. Smith, 1 Nott & McCord, 13; Rex v. Manning, 2 Comyns, 616.

Here the law does not regard the act as being properly a crime; or, if it does, still the rules which regulate civil proceedings must be applied. If the matter complained of is a single act and joint in its nature, the several participants in it may be sued jointly: but the common law rule is, that, in these cases civil in form, the judgment against the defendants must be joint, for one damage; while, in those which are criminal in form, it must be several, each defendant to suffer the whole punishment. And so, if, in the civil form of action, the full penalty is recovered against one, and collected of him, no suit can afterward be carried on against others who were engaged jointly with him.3

§ 639. Thus where a pecuniary penalty is imposed by statute for the sale of intoxicating liquor without license, all who participate in a particular sale may be proceeded against jointly, whether by action or indictment. But if by indict

ment, the judgment is several against each for the whole penalty; while, if by action, it is joint, and the penalty can be collected only once out of all. There are, however, many cases in which the proceeding is civil in form, where also the thing done is so far in its nature several, that each of the participants is to be sued separately for what he does; and each, therefore, pays the full penalty.7

1 Ante, § 40.

2 See the cases, generally, cited in the next section and the last; Warren v. Doolittle, 5 Cow. 678.

Boutelle v. Nourse, 4 Mass. 431; Frost v. Rowse, 2 Greenl. 130,

4 Commonwealth v. Sloan, Cush. 52; Commonwealth v. Tower, 8 Met. 527. And see Stephens v. The State, 14 Ohio, 386; Rex v. Crofts, 7 Mod. 397. In Vaughn v. The State, 4 Misso. 530, it was held, that two persons could not be jointly indicted for pursuing the business of auctioneers without license. See also The State v. Coleman, Dudley, S. C. 32.

5 Commonwealth v. Harris, 7 Grat. 600.

6 Ingersoll v. Skinner, 1 Denio, 540; Tracy v. Perry, 5 N. H. 504. Marsh v. Shute, 1 Denio, 230; Curtis v. Hurlburt, 2 Conn. 309; Arnold v. Loveless, 6 Rich. 511. I am sufficiently clear, that the distinctions mentioned in the last three sections are the true legal ones, resting as well in the