
    Frank Wharton, a Freedman, v. The State oe Mississippi.
    1. Writ oe error : will not lie unless judgment in court below : CASE IN JUDGMENT. — A writ of error will not lie where there is no judgment in the court below : Wharton was indicted for grand larceny, and found guilty by the verdict of the jury. The court in its sentence fixed no term of imprisonment. ■ Held, that there was no judgment, and to revise the . same a writ of error would not lie to the High-Court of Errors and Appeals.
    2. Criminal Law : verdict, judgment and sentence : eeeect oe verdict WHEN THE SENTENCE OE THE COURT IMPOSES NO PUNISHMENT. — On a writ of error to the High Court,where the defendant in the court below was found guilty of grand larceny, and no term of imprisonment is fixed by the sentence of the court, the High Court will not reverse the judgment, but will remand the prisoner to the court below to pronounce such sentence and judgment as the law directs.
    3. Same : same : when sentence erroneous the high court will discharge prisoner. — When the Circuit Court imposes a wrong sentence and judgment upon a defendant found guilty by the verdict of a jury, the High Court will reverse the judgment and release the prisoner.
    ■Error to the Circuit Court of Hinds county. Hon. John Watts, judge.
    The Clerk of the Circuit Court of Hinds county certifies that the judge of the court sentenced plaintiff in error to imprisonment in the penitentiary for five years from the 28th day of May, 1867, and that the failure to insert the term of imprisonment in the judgment of. the court, was a clerical error on his part. That after the conviction of the plaintiff in error, the judge being sick, he gave him the following memorandum :
    “ State j Larceny. .
    v. j- Sentenced to 5 years from the 28th
    Frank "Wharton. J of May, a.d. 1868.”
    
      T. J. Wharton for plaintiff in,error.
    
      The error in the sentence of the court below in not fixing the term of imprisonment — I insist that there must be a reversal. It cannot be remanded to the court below to enter judgment, nunc pro tunc. The term has elapsed at which judgment was entered. The proper judgment cannot be entered here on the verdict.
    In the case of Rex v. Kenworthy, 1 Barn, and Cress. R. 711, there was no judgment in the court below (an order only had been made). The case was reversed and remanded. In Rex v. Lookup, 3 Burrows, 1901, judgment of the Court of King’s Bench was reversed in the House of Lords, and the defendant discharged.
    So in Rex v. Kicholl, 1 Barn, and Aid. 21.
    In the Kmg v. Ellis, 5 Barn, and Cress. 395, 11 Eng. Com. Law, 259, reported in 2 Lead. Or. Oases, 372, defendant was convicted of petty larceny, which was punishable by statute, 4 Geo. I. eh. 11, with transportation for seven years. Court awarded sentence of fourteen years’ transportation. On error, it was held that the appellate court could not render a new judgment, nor remand the cause to the court below for a new judgment to be rendered there, but could only reverse the judgment and discharge the prisoner.
    It was argued for the Crown : 1st, that the judgment of transportation for 14 years was warranted by law. 2d, at all events, it was good as a judgment of transportation for 7 years. 3d, if the judgment could not be supported, the prisoner should be remanded to the court below, in order to receive such judgment as the law warranted. The court said: “ It has been urged that the prisoner be remanded to the court below, and there receive the proper sentence, as was done in Rex v. Kenworthy, 1 B. & C. 711. But there is this material distinction between the two cases : there no judgment whatever had been passed in the court below; and this court, therefore, ordered the prisoner to be remanded to the inferior -court, in order to receive judgment. But here the court below has passed a judgment, and that judgment being erroneous, we think there is no ground to send it back to be amended. The consequence is that the judgment pronounced by the court below must be reversed,” and the prisoner was discharged.
    In the Ki/ng v. Bowme and others, I Adolphus & Ellis, 3 Eng. O. L. 36, 58, and also reported in 2 Lead. Or. Oases, 316: Three parties were jointly indicted — there were two counts— 1st, for burglary, 2d, for larceny — and pleaded not guilty — were convicted on the 1st count and acquitted on the 2d. Judgment was entered that Bourne (one of the parties) be transported for seven years, and the other two parties be transported, each for the term of his natural life. Lord Campbell, then attorney-general, when the case was argued in the appellate court, admitted that the judgment was erroneous, and that the only question was, whether that court would pass the proper sentence, or remit the case back to the Sessions. Peacock, who argued for the prisoners, said: “ If the case was remitted to the Sessions for their sentence, it would probably go to a court composed of different persons from those who tried it.” (I make the same suggestion in this case.) In his argument for the Crown, Lord Campbell urged that the appellate court, vi/rkwte officii, could pass sentence ; or could remit the case to the justices, who were not precluded by the terms of their commission from passing sentence of death (which was the penalty affixed by the statute upon which the indictment was framed). He said the court was bound to give that judgment which appears, upon the whole record, to be the proper one; and that there was no difference, in that respect, between a court of error and a court of original jurisdiction. To that it was replied, by the counsel for the prisoner, that “ the attorney-general, who admits the judgment to be erroneous, is not entitled to ask that a valid one should be passed.
    The court (Lord Denman, C. J., Littledale & Patteson, associates) delivered opinions, seriatim, holding that that court could neither pass the proper sentence, nor send back the record to the court below in order that it might be done there, but that the judgment must be reversed, and the defendants discharged.
    
      In Massachusetts it has been held, that a mistake in any part of a criminal sentence, however small, vitiates the whole; and the prisoner is not liable to further procedure. Shepherd v. Commonwealth, 2 Metcalf R. 419 ; Christian v. Commonwealth, 5 Metcalf R. 530. And it makes no difference whether the mistake makes in his favor, by way of an award of sentence, less than the statute reqiiisition, or against him by way of a greater. Wilde v. Commonwealth, 2 Metcalf R.408; Strong y. Commonwealth, ib. 360 ; So in New York, 5 Denio R. 97, The People y. Taylor; and so in Pennsylvania, Pa/niels v. Commonwealth, 7 Bar. 371; Prew v. Commonwealth, 1 Wharton R. 279.
    In Regina v. Hartnett, Jebb, C.C., 302, the court below omitted in pronouncing sentence on a conviction for murder, to order that the bodies of the prisoners should be buried within the precincts of the jail, as directed by the statute; but on a subsequent day, ón ruling the book at the close of the same assizes, in the absence of the prisoners, directed in open court that their bodies should be buried within the precincts of the jail; it was held, on writ of error, that the sentence was illegal, and the prisoners were discharged.
    The two leading cases, Hingr. Ellis and The King v. Bourne and others, cited from 5 Barn, and Cress. R. 395 (11 Eng. Com. L. 259) and 7 Adolph. & Ellis, 58 (3 Eng. Com. L. 36) may be found reported in 2 Leading Criminal Cases, 372, 376.
    I call the special attention of your Honors to them; and also the cases in Massachusetts, sttproj, especially to the case of Christian v. Commonwealth, 5 Metcalf, 530.
    I hold that the foregoing authorities are conclusive. In all of them the prisoners were discharged, the appellate court refusing either to enter the judgment which should have been entered in the court below, or to remand the case to the latter court to do so.
    If I should be mistaken in claiming for the plaintiff in error the right to be discharged, can it be possible that I am wrong in maintaining that the judgment of the court below should be reversed, and the cause remanded for a new trial ? Can this court do less than that ? But in saying this, I would not be understood for a moment as waiving the former demand, viz. for his discharge.
    As to the authority of the cases cited by the attorney-general, 23 and 24 Miss, and 1 and 2 S. & M., I have only to say, I admit that writs of error to this court must be prosecuted from final judgments in the court below, and reply, that this was such a judgment which was rendered in this case.-
    
      O. E. Hoolcer, attorney-general for the State,
    cited Rev. Code, p. 563, art. 11; Ga/rr v. Goopwood, 24 Miss. R. 256 ; Green v.' Slate, 23 ib. 509; Porter v. Petterly, 1 S. & M. 163; Pender v. Felts, 2 ib.535.
   Shackelford, C: J.,

delivered the opinion of the court.

The plaintiff in error was indicted for grand larceny, tried and convicted at the May term, 1867, of the Hinds Circuit Court for the First District.

The record shows the verdict of the jury, finding the plaintiff in error guilty.

The writing on the minutes, after stating the verdict of the jury; proceeds as follows :

“ The State of Mississippi v. Frank Wharton, Freedman. The defendant having been found guiity of the crime of grand larceny, at the present term of this court, is now brought to the bar of the court to hear his sentence. It is therefore ordered by the court, that the said defendant be sentenced to imprisonment in the penitentiary at Jackson, in said State, for and during the term of • — —- years, and that said imprisonment commence" from the 22d of May, 1867,” &c.

There was a motion for a new trial, which was overruled by the court.

Exceptions taken to the ruling of the court, in refusing plaintiffs in error a new trial.

Hence the case is brought to this court by writ of error.

" There are a number of assignments of error ; we shall only notice the last, which is as follows:

“ The judgment and sentence of the. court is erroneous, because no term of imprisonment is fixed.”

Counsel for plaintiff in error contends that the judgment being erroneous, there being no time fixed in the sentence, the judgment must be reversed, and the term having elapsed at which he was convicted, the case cannot be remanded to the court below, to have plaintiff in error sentenced nunc fro tunc ; therefore he must be discharged.

In support of these positions counsel cites the court to the case of Key v. Ellis, 5 Barn. & Cress. p. 395; 2 Lead. Cri. Cases, 312.

In this case the defendant was convicted of larceny, which was punishable by the statute of 4 Geo. I. ch. 11. with transportation for seven years.

The court awarded sentence for fowrteen years transportation.

On error, it was held, that the appellate court could not render a new judgment, nor remand the cause to the court below ' for a new judgment, and discharged the prisoner.

This prisoner was discharged because there was a wrong sentence and judgment.

In the case of the plaintiff in error, there was no wrong judgment or sentence; he was not sentenced for a longer term than was prescribed by law for the offence of which he was convicted.

In what purports to be a judgment and sentence, appearing in the record, there is no time fixed for his imprisonment; consequently it is a nullity.

It is entirely without substance; the most important and only requisite to constitute it a judgment or a sentence is wanting — the penalty prescribed by law for the offence of which plaintiff in error was convicted is omitted. Easterling v. The State, 35 Miss. p. 210.

The verdict stands in the court below without judgment.

The plaintiff in error is still in the custody of the law, as an unsenteneed convict.

There being no judgment in the case, this court has no jurisdiction of it. A writ of error will not lie when there is no judgment. Porter v. Detterly, 1 S. & M. Rep. 163 ; 2 ib. p. 27; 3 ib. 588 ; 11 ib. Loftus v. State, 358.

Therefore this cause must be dismissed from this court, and remanded to the Circuit Court of Hinds county for the First District, with instructions to the judge to pronounce the sentence, and the judgment of the law upon the verdict of the jury-  