from this that if there be two perjuries, a sentence of penal servitude can be awarded in respect of each of them. I have examined the judgements in The People ex rel. Tweed v. Liscomb (') and I cannot find any valid reason either in form or in substance suggested for the determination at which the judges arrived.. Therefore I cannot treat this case as a guide in coming to a conclusion in the case before us. In favor of the argument for the Crown upon this point authority of English judges may be found. All English lawyers know that the opinion of Patteson, J., ought to be treated with the highest respect, and the irresistible inference from what he said in O'Connell v. Reg. ("), is that in his opinion where one sentence is postponed to another it is no objection that the two sentences taken together exceed the whole punishment which might be awarded for one offence. To my mind Rex v. Robinson () is a clear authority. The indictment contained two counts for passing false coin, and the defendant was sentenced to two years' imprisonment: the judges held that this sentence was wrong, but they stated that a sentence of one year's imprisonment might have been passed for each offence, and that the commencement of the second might be postponed until the termination of the first. It is true that this statement was not, technically, part of the decision; but it is 518] *hard to conceive a more deliberate judicial opinion. I will again mention the opinion of Blackburn, J., in Reg. v. Cutbush(); it seems to me a strong authority to show that in cases of misdemeanor the aggregate of separate punishments for separate offences may be greater than the punishment which could be inflicted for any one of them. Therefore, notwithstanding the able argument which has been addressed to us, it seems to me that on principle and authority this case is clear, and that the judgment of the Court of Queen's Bench was in law absolutely right. Judgment affirmed. Solicitor for plaintiff in error: Edmund Kimber. The Queen v. Castro. him for either offence, the imprison ment 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." In many of the States it is held, that where a defendant is found guilty upon two counts in an indictment, it is proper to render a several judgment on each count. Illinois: Kioez v. People, 78 Ills., 294; Johnson v. People, 83 id., 431; Stack . People, 80 id., 32; Fletcher v. People, 81 id., 116; McCann v. People, 88 id., 104. See Goodhue v. People, 94 Ills., 37. Missouri State v. Boogher, 4 Cent. L. J., 321. Ohio: Eldredge v. State, 6 Cin. Law Bull., 630. Pennsylvania: Com. v. Birdsall, 69 Penn. St. R., 482. United States, Circuit and District: U. S. v. Bennett, 17 Blatchf., 357, 361-2. In New York it is held, 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 cuinulative sentences exceeding, in the aggregate, what is prescribed by statute as the maximum punishment for one offence of the character charged. The provision of the Revised Statutes, that upon a conviction of a person of two or more offences, before sentence shall have been pronounced upon him for either, the imprisonment to which he shall be sentenced upon the second shall commence at the termination of the first term, and so on, applies only to separate convictions upon distinct trials. It does not apply to convictions upon the same trial of several offences joined in one indictment: People ex rel. Liscomb . Tweed, 60 N. Y., 559. See Polinsky . People, 11 Hun, 390, 392, 73 N. Y., 65. Under 1 R. S., 674, § 61-63, which provides that " every person who shall profanely curse or swear shall forfeit one dollar for every offence," and, in default of payment, may be committed 29 ENG. REP. 55 1880 to the county jail, "for every offence whereof he is convicted, at one and the same time, for not less than one nor more than three days,"-in case of a single conviction, though for several distinct offences, imprisonment for more than three days cannot be imposed : Foland v. Johnson, 16 Abb. Pr., 235. A defendant who has been found guilty, generally, upon an indictment containing several counts for distinct offences, and has been sentenced upon some of the counts to imprisonment, and has been imprisoned under such sentence, cannot be brought up at a subsequent term to which the case has not been continued, and be sentenced anew upon another count in the same indictment, even if the first sentence was erroneous: Commonwealth v. Foster, 122 Mass., 317. If several sentences be imposed without directing that one shall commence at the expiration of another, they all run together, and at the expiration of the longest the defendant is entitled to be discharged: Matter of Jackson, 3 MacArthur, 24. Where a person was sentenced to imprisonment in the state prison for a term of one year, to commence upon the expiration of another term; and one year afterwards the first judgment and sentence were adjudged void: Held, on habeas corpus, that the sentence either commenced to run immediately on rendition, and had expired, or it was void for uncertainty; and in either case the prisoner was entitled to his discharge from the state prison. Where, on appeal, a conviction for crime is adjudge void, it is not the decision of the Supreme Court that makes it void it is void ab initio: Matter of Roberts, 9 Nev., 44. Where a party is convicted under two counts of the same indictment, it is error to impose more than the maximum punishment on one in gross; a certain definite punishment should be imposed upon each count: Mullinix v. People, 76 Ills., 211; Martin v. People, Id., 499. Where a party is convicted at the same term upon several indictments of several crimes, each punishable by imprisonment in the penitentiary or state prison, it is not error in sentencing the defendant to make one term of impris onment commence when another termi nates: Williams v. State, 18 Ohio, St. R., 46; Williamson's Case, 67 Mo., 174; Turner's Case, 45 id., 331; Mims v. State, 26 Minn., 498, 5 N. W. Reporter, 374 (bottom p.); Mier v. McMillan, 51 Iowa, 240, 1 N. W. Reporter (bottom p.), 525; Wilkes's Case, 4 Brown Parl. Cas. (Toml. ed.), 367; Matter of Jackson, 3 MacArthur, 24; Matter of McCormick, 24 Wisc., 492. So on conviction under several counts in the same indictment: Johnson v. People, 83 Ills., 431; Stack . People, 80 id., 32. One sentence cannot be made cumulative upon another which the prisoner is already serving, unless the latter be proved by certificate or by production of the previous conviction. Oral evidence that the prisoner has a previous sentence against him is insufficient. But the court can amend a sentence by making it commence from the time of the conviction under which it was passed Regina . Fennell, 2 Vict. L. R. (Law), 183. Where a sentence is made cumulative upon a former sentence, it is not sufficient, in drawing up the record, to insert in it cumulative upon former sentence." The particular sentence must be specified: Regina v. Desmond, 3 Vict. L. R. (Law), 48. A sentence of imprisonment, "to commence after the expiration of former sentences," has been held to be too indefinite and uncertain: Larey v. Cleveland, 34 Ohio St. R., 599; Williams . State, 18 id., 46; Picket v. State, 22 id., 405; Queen v. Scott, 2 Upper Can. L. J. (N.S.), 323. But see contra, Johnson v. People, 83 Ills., 431; Matter of Ryan, 10 Nev., 261; Matter of Jackson, 3 MacArthur, 25, 26; Rex v. Wilkes, 4 Burr., 2577-8; Kite v. Com., 11 Metc. 581, 585; Com. v. Leath, 1 Vir. Cases, 151. Where one, under sentence for a felony, commits a crime, he may be tried before the expiration of the sentence he is serving, convicted, and sentenced for a second term, to commence at the expiration of the first: Haggerty v. People, 6 Lans., 347, 53 N. Y., 642. But see, in Massachusetts, Com. v. Mott, 2 Law Reporter, 47, 21 Pick., 492; Getchell's Case, 16 id., 452. Mr. Bishop (1 Bish. Cr. Law, 5th ed., § 953; 7th ed., § 731,) lays down the rule thus: "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 to be pronounced, the judgment may direct that each succeeding period of imprisonment shall commence on the termination of the period next preceding; a doctrine, however, which has been latterly, it is believed without due consideration, denied in Indiana, 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." Again he says (1 Bish. Crim. Proc., 1139, 2d ed.; § 878, 1st ed.): Though the sentence to imprisonment ought properly to specify at what time it is to be carried out, yet time is not of the essence of such a sentence. Therefore, where a defendant, who had been convicted of an assault, was sentenced to be imprisoned for two calendar months from and after the first of November next,' but did not go into prison according to the sentence; and, at a subsequent term, it was directed that the sentence for two months' imprisonment be immediately executed, the proceeding was held to be correct. Hence, also, we have the doctrine already mentioned, that if the prisoner was previously sentenced to a period of imprisonment, a second sentence, for another offence, may be made by the court to commence when the former shall have expired." 1 Bish. Cr. Proc., 3d ed., § 1309-11. In the King . Bath (1 Leach, 4th ed., 441), it was held that a "sentence of transportation may be a second time passed upon a prisoner, although the term for which he was before transported is unexpired." In Russell r. Commonwealth (7 Serg. & Rawle, 489), it was held that "When a person has been sentenced to hard labor on a former indictment, and the term of imprisonment is not yet expired, sentence of imprisonment at hard labor may be passed upon another indictment, to commence from the day on which the former sentence is to expire." In Missouri, in Ex parte Brun The Queen v. Castro. ding (47 Missouri Rep., 255), where a prisoner, before the expiration of his term, escaped, committed another crime while at large, was convicted and sentenced therefor, although still under sentence for his first offence. The court held the second conviction legal, and that the term thereof commenced at the expiration of the first. The court said (pp. 255-256): "The petitioner asks to be discharged from the custody of the warden of the penitentiary, on the ground that the time for which he was lawfully imprisoned has expired. The facts are these: In 1864 he was indicted for two separate offences, in the St. Louis Criminal Court, and convicted and sentenced to two years imprisonment in the penitentiary for each offence. Before the expiration of the term of his imprisonment he unlawfully made his escape; and while so absent and running at large, he committed the offence of grand larceny, was indicted, convicted, sentenced, and again returned to the penitentiary. He has duly served out the time for which he was sentenced under the first two convictions, and is now detained for the last. This deten tion he alleges to be illegal, for the reason that he was already under sentence. We do not see that the statute (1 Wagn. Stat., 513, § 9), nor the case of Ex parte Myers (44 Mo., 279), and Ex parte Turner (45 Mo., 331), have anything to do with the case here presented. The statute provides that where a prisoner is convicted of two or more offences at the same term, the conviction in all the cases must precede the sentence in either. But here the prisoner was not in actual custody. He had escaped and was free, and, true to his nature, he could not enjoy liberty without committing crime; and to say that, under such circumstances, there is no law to justify his punishment, is rather a startling proposition. Establish the doctrine that an escaped convict may commit any crime, and that he cannot be tried and punished because he rightfully ought to be in the penitentiary instead of running at large, and it will lead to the most disastrous results. I am not aware of any statutory provision to support such a principle, and the counsel have referred to none. It seems to be settled that a prisoner 1880 under an unexpired sentence of imprisonment, where he commits an offence, may be convicted, and that the succeeding period of imprisonment will commence on the termination of the period next preceding (1 Bishop on Crim. Law, 731 note; 1 Bish. on Crim. Pr., § 878). It follows that the petitioner is not entitled to his discharge, and that he must be remanded :" Matter of Ryan, 10 Nev., 261. The heinousness of the offence committed after the first conviction, cannot change the rule of law. In the case of the State v. Connell (49 Mo., 282), the defendant, while in confinement under a conviction for murder, killed a fellow convict. He was indicted, tried and sentenced to be hung. On appeal he urged, among others, the same point as that here taken. overruled, the court (p. 285) saying: It was The record shows that the plaintiff in error is a convict in the State penitentiary; that he committed a wilful murder in Boone county, for which he was tried, condemned and sentenced to be hung; and that upon certain representations his punishment was commuted by the governor to imprisonment for life in the State penitentiary. After he was imprisoned in the penitentiary, he killed Lafayette Burns, a fellow convict, for which killing he was indicted in the Cole County Circuit Court, and upon his trial was found guilty of murder in the first degree, and he has brought his case to this court by writ of error." After discussing an objection to the formation of the grand jury which found the indictment, the court (pp. 288-290) proceeds: The next question presented for our inquiry is the jurisdiction of the court. The ground is assumed that, because the plaintiff in error is an inmate of the penitentiary, under sentence for life, he is not amenable to the courts of the country, and is not punishable for his criminal acts while in actual confinement. This argument is based on the idea that, as he is civilly dead, he is not responsible for anything he may do while his liability continues. The cases of Ex parte Myers (44 Mo., 279), and Ex parte Brunding (47 id., 255), have no bearing on the question presented here. The Myers case was de cided upon the statute. The criminal court had sentenced the defendant at one term, and then held him in custody on another indictment and tried and sentenced him at a subsequent term, and he was sent up and imprisoned on both sentences. We held that under the provisions of the statute the last conviction was wrong; that the law required that when there were two convictions they must both be obtained at the same term, and take place before the sentence is pronounced in either case. In Brunding's case the prisoner was confined in the penitentiary and escaped, and committed another crime while out, for which he was indicted, tried, convicted and again sent to prison. When he was placed in the hands of the officers they recognized him and compelled him to serve out his unexpired term, and then held him to serve out his last sentence. This we held they had a right to do, and we maintain the doctrine that where a prisoner under an unexpired sentence commits an offence he may lawfully be convicted thereof, and that the succeeding period of imprisonment will commence on the termination of the period next preceding. It will be perceived that both convictions were of the same grade, punishable in the penitentiary, and were for defined and limited periods. But had the first sentence been for life, we cannot see that it would have precluded the second conviction. person of a convict sentenced to imprisonment in the penitentiary is under the protection of the law, and any injury to his person not authorized by law, shall be punishable in the same manner as if he was not sentenced or convicted (Wagn. Stat., 515, § 23). The provision for punishment applies to all who commit the offence and injury, whether it be a fellow convict or any other person. As further authority showing that the statute clearly makes convicts responsible for crimes committed while serving their time in the penitentiary, it is only necessary to refer to the article on the treatment and conduct of convicts. Section 14 of that act provides that whenever any convict confined in the penitentiary shall be considered an important witness in behalf of the State, upon any criminal prosecution against any other convict, he shall be brought out on habeas corpus to testify. Section 15 declares that such convict may be examined, and shall be considered a com petent witness against any fellow convict for any offence committed while in prison (Wagn. Stat., 989, § 14, 15). These provisions all plainly show that the statute holds to accountability convicts committing crimes, in the same manner as other persons. And where a prisoner is under sentence for one crime, it is no bar to his trial, conviction and sentence for another and "The executive might have pardoned higher grade of crime, committed the prisoner for the first offence, and while he is undergoing imprisonment in that case he would be immediately for the first. This was always the held on the second sentence. But the doctrine under the common law. While question here presented is a wholly the courts held that the plea autrefois different one. It is whether a criminal attaint, or a former attainder, was a confined for one crime, who commits good plea in bar, whether it was for the another and a greater crime, to which same or any other felony, yet there the law affixes a severer penalty, shall were certain well recognized and estabescape his merited punishment. To lished exceptions to the rule, among say that he has an entire immunity is which were that an attainder in felony was no bar to an indictment for treason, because the judgment and manner of death was different, and the forfeiture was more extensive. Another exception which obtained was that where a person attainted of any felony was afterwards indicted as principal in another, in which there were also accessories prosecuted at the same time. In that case it was held that the plea of autrefois attaint was no bar, but that he should be compelled to take his trial for the sake of public justice, be રી proposition monstrous in itself. Notwithstanding a man may be sentenced and imprisoned for a criminal offence, he is still amenable to and under the protection of the law. Though laboring under disabilities as to his civil rights, the law assumes over him a control and guardianship. He is criminally answerable for his acts, and is protected from injury or violence. The law regards him still as a living human being and as a responsible agent. The statute declares that the |