Commonwealth v. Hayes , 170 Mass. 16 ( 1897 )

Holmes, J.

The statute requiring sentence to be imposed notwithstanding exceptions or appeal provides also that exceptions or an appeal shall not stay execution unless a certificate is filed that there is reasonable doubt whether the judgment should stand. St. 1895, c. 469, § 2. It seems to us to follow that a stay granted on the footing of such a certificate necessarily conies to an end when the doubt is removed by the decision of this court, and that the decision of the judge with reference to the order before him was right.

If we are to regard the offer of evidence and the ruling as applying not merely to the question of the stay under the statute, but also to an independent motion to grant a further stay, implied perhaps in the offer, we are of opinion that the judge had no power to grant such a motion upon the ground of the defendant’s health. The term in which the sentence was pronounced was past, and the power of the court to modify it was at an end. Commonwealth v. Weymouth, 2 Allen, 144. Mason v. Pearson, 118 Mass. 61. An ordinary sentence of fine or imprisonment imports that it is to be carried into execution forthwith. The statutes direct that, when a person convicted of an offence is sentenced to pay a fine or to be imprisoned, the clerk of the court “ shall, as soon as may be, make out and deliver ” to the proper officer a certified transcript from the minutes of the court of such conviction and sentence, “ which shall be a sufficient authority for the officer to execute such sentence, and he shall execute it accordingly.” Pub. Sts. c. 215, § 25. It has been held in several States, apart from statute so far as appears, that the term of imprisonment under a sentence begins on the day of the sentence. Ex parte Meyers, 44 Mo. 279, 283. Miller v. State, 15 Fla. 575, 576. People v. Lincoln, 62 How. Pr. 412. 10 Am. & Eng. Encyc. of Law, 199.

It would seem to follow that a stay of execution, so far as it goes, is a modification of a term which in view of the law is embodied in the sentence no less than if it were expressed. It is unnecessary to consider possible exceptions or such early English precedents as Dyer, 205 a, pl. 5, 2 Hale, P. C. 412. The question of the extent of the power to suspend sentence is so far a different one that the cases upon that subject do not throw much light upon the one at bar.

Exceptions overruled.