Heyward v. State , 161 Md. 685 ( 1932 )

It is true that the docket entries show a certain and definite sentence within the law, but these entries are the brief notations by the clerk, who is merely the hand of the court. A docket entry is not the conclusive evidence of the court's act, and, so, may be corrected or shown to be inaccurate or incomplete in order that the record may truly conform to the facts.Weighorst v. State, 7 Md. 442, 449, 450; Watkins v. State,14 Md. 412, 421-423; Dutton v. State, 123 Md. 373, 376, 91 A. 417. Here the entry by the clerk on the docket of a sentence to pay a fine of $1,000 and to be imprisoned for the term of sixty days is shown, by the certification of the court of its action, to be incomplete, and the sentence actually imposed to embrace the condition subsequent that the term of imprisonment would be abrogated provided the convict would go before the grand jury and reveal criminal acts of other undisclosed parties. Although there was no motion made to strike out this conditional sentence nor any exception taken to the action of the court, the sentence, it would seem, may be reviewed on this appeal from the judgment, as is illustrated by Cochran v. State, 119 Md. 539, 557-558, 87 A. 400; Kelly v. State, 151 Md. 87, 100-101,133 A. 899; Klein v. State, 151 Md. 484, 493-494, 135 A. 591. See Code, art. 5, sec. 86; Price v. State, 159 Md. 497, 151 A. 409.

The writer of this comment inclines to the view that this tribunal should have reversed the judgment and remanded the cause for the imposition of a proper sentence by the trial court, as is authorized by section 87 of article 5 of the Code. In other respects I fully agree with the opinion of the court.

The views expressed by Chief Judge Bond are, in my judgment, wholly sound, and are supported by reasons so well stated that further discussion is unnecessary, but it may be observed that the condition imposed is open to the further objections of tending to incite the convict to bear false witness and commit perjury, and of making the sentence void for uncertainty and indefiniteness.

The statement in Chitty that "it is also an established rule of the English law, that the judges in the exercise of their discretion can invent no new penalties to suit the offence, or to gratify their own caprices," is sound law in this jurisdiction. 1Chitty on Criminal Law, [*]712; 4 Blackstone Com., 378;Watkins v. State, 14 Md. 412, 421-424; Negro Peter v. State, 4 H. McH. 3; Negro Cornish v. State, 15 Md. 208, 210-211;McDonald v. State, 45 Md. 90. See Code, art. 5, sec. 87. So, a valid sentence must be certain and definite. Unless authorized by statute, it should not depend upon any contingency, nor be subject to a future decision, but must be unconditional. 1 Archbold's Crim. Pr. Pl., p. 580; 1Chitty on Crim. Law, [*]701; 1 Bishop on Crim. Prac., sec. 1309; 19 Am. Eng. Ency. of Pl. Pr., 475.

The sentence at bar imposed both fine and imprisonment. The service of the term in jail depended, however, not only upon the convict's election to comply with the condition, but also, and, ultimately, upon the court's determination that the convict had fulfilled the condition of appearing before the grand jury and giving the required testimony. The sentence was, therefore, uncertain and indefinite because of an inseparable condition of a coercive nature. The authorities denounce such a sentence. Rexv. Collier and Cape, 1 Wils. 332, 95 Eng. Rep. 647; State v.Bennett, 20 N.C. (4 Dev. B. Law) 43; Ex parte United States,242 U.S. 27, 45, 37 S.Ct. 72, 61 L.Ed. 129, 142; Wallace v.State, 126 Ga. 749, 55 S.E. 1042; State v. Sturgis, 110 Me. 96, 99, 85 A. 474; Miller v. Camden, 63 N.J. Law, 501, 504, 43 A. 1069, 1070.

Under the condition imposed, the failure of the convict satisfactorily to testify before the grand jury is what the court punishes by the sixty days' term of imprisonment. The court, in effect, originates a new offense unknown to the law, and prescribes its punishment.