The Attorney General and Mr. Thomas D. Thacher, of Washington, D. C., for the United States. [282 U.S. 304, 305] Mr. Francis Biddle, of Philadelphia, Pa., for Benz.
Mr. Justice SUTHERLAND delivered the opinion of the Court.
This case is here on a certificate from the court below under section 239 of the Judicial Code, as amended by the act of February 13, 1925, c. 229, 43 Stat. 936, 938, U. S. Code, [282 U.S. 304, 306] title 28, 346 (28 USCA 346). Benz was indicted for a violation of the National Prohibition Act (27 USCA). He entered a plea of guilty and was sentenced to imprisonment for a term of ten months beginning December 27, 1929. While undergoing imprisonment under this sentence, and before expiration of the term of the federal District Court which had imposed the sentence, he filed a petition asking that the sentence be modified. The court, over the objection of the United States, entered an order reducing the term of imprisonment from ten to six months. The government appealed, and the court below, desiring the instruction of this Court, certified the following question:
The contention of the government is that after the defendant has been committed and has entered upon service of a valid sentence, the power of the court to alter the sentence, even at the same term, has come to an end. In addition, some stress is put upon the fact that the powers of the three departments of government are separated by the Constitution, so that one of the departments may not exercise the powers conferred upon either of the others; and it is suggested that from this separation the implication fairly may be drawn that a reduction by the court of a valid sentence after it has been party served is, in effect, an invasion of the power to pardon offenses, including the power to commute, vested in the executive by article 2, 2, cl. 1, of the Constitution.
The general ule is that judgments, decrees and orders are within the control of the court during the term at which they were made. They are then deemed to be 'in the breast of the court' marking them, and subject to be [282 U.S. 304, 307] amended, modified, or vacated by that court. Goddard v. Ordway, 101 U.S. 745 , 752. The rule is not confined to civil cases, but applies in criminal cases as well, provided the punishment be not augmented. In re Lange, 18 Wall. 163, 167-174; Bassett v. United States, 9 Wall. 38. In the present case the power of the court was exercised to mitigate the punishment, not to increase it, and is thus brought within the limitation. Wharton, in Criminal Pl. and Pr . (9th Ed.) 913, says: 'As a general practice, the sentence, when imposed by a court of record, is within the power of the court during the session in which it is entered, and may be amended at any time during such session, provided a punishment already partly suffered be not increased.'
The distinction that the court during the same term may amend a sentence so as to mitigate the punishment, but not so as to increase it, is not based upon the ground that the court has lost control of the judgment in the latter case, but upon the ground that to increase the penalty is to subject the defendant to double punishment for the same offense in violation of the Fifth Amendment to the Constitution, which provides that no person shall 'be subject for the same offence to be twice put in jeopardy of life or limb.' This is the basis of the decision in Re Lange, supra. There, the punishment prescribed by statute was imprisonment for not more than one year or a fine of not less than $10 nor more than $ 200; but Lange was sentenced to one year's imprisonment and to pay $200 fine. Five days after the imprisonment had begun, after payment of the fine and during the same term, Lange was brought before the same court on a writ of habeas corpus; an order was entered vacating the former judgment, and he was again sentenced to one year's imprisonment from that time. This court stated the rule to be, page 167 of 18 Wall.: 'The general power of the court over its own judgments, orders, [282 U.S. 304, 308] and decrees, in both civil and criminal cases, during the existence of the term at which they are first made, is undeniable.' The court declared, however, that the power could not be so used as to violate the constitutional guarantee against double punishment, holding (page 173 of 18 Wall.) that this guaranty applied to all cases where a second punishment is attempted to be inflicted for the same offense by a judicial sentence:
But the court immediately proceeded to say, page 174 of 18 Wall.:
Then returning to the question of double punishment, and reciting that Lange had paid the fine and had undergone five days of the one year's imprisonment first imposed, the court said, page 175 of 18 Wall.:
The Lange Case and the Bassett Case, supra, probably would have set at rest the question here presented had it not been for a statement in United States v. Murray, 275 U.S. 347, 358 , 48 S. Ct. 146, 149. In that case this Court held that where the defendant had begun to serve his sentence, the District Court was without power, under the Probation Act of March 4, 1925 (18 USCA ss 724-727), to grant him probation; and, citing In re Lange as authority, said: 'The beginning of the service of the sentence in a criminal case ends the power of the court even in the same term to change it.' But the Murray Case involved the construction of the Probation Act, not the general powers of the court over its judgments. The words quoted were used by way of illustration bearing upon the congressional intent, but were not necessary to the conclusion reached. That they state the rule more broadly than the Lange Case warrants is apparent from the foregoing review of that case.
The rule thus being settled for this court by its prior decisions, we need not discuss the conflicting state cases nor the conflicting decisions of lower federal courts which are cited, further than to say that the federal cases cited by the government in support of its position are comparatively recent, and at least in some instances rest upon the general statement in the Murray Case just quoted. The earlier view is to the contrary. Thus in the case of In re Graves (D. C.) 117 F. 798, 799, where a person had been re- [282 U.S. 304, 310] sentenced to serve for a period of one and one-half years after having been imprisoned for a number of days under a sentence of two years, the court refused to discharge him on habeas corpus, saying:
We find nothing in the suggestion that the action of the district court in reducing the punishment after the prisoner had served a part of the imprisonment originally imposed was a usurpation of the pardoning power of the executive. The judicial power and the executive power over sentences are readily distinguishable. To render judgment is a judicial function. To carry the judgment into effect is an executive function. To cut short a sentence by an act of clemency is an exercise of executive power which abridges the enforcement of the judgment, but does not alter it qua judgment. To reduce a sentence by amendment alters the terms of the judgment itself and is a judicial act as much as the imposition of the sentence in the first instance.
The question propounded must be answered in the affirmative.
It is so ordered.