THE UNITED STATES, PLAINTIFF AND APPELLEE, VS. JOSE VAYSON, DEFENDANT AND APPELLANT.

An appeal by Jose Vayson from a judgment of the Court of First Instance of
Misamis, sentencing him to six months’ imprisonment and to the payment of the
costs of the cause for a violation of the Election Law. The original information
is as follows:

“Jose Baison is accused by the undersigned of a violation of paragraph 4,
section 30, of the Election Law, committed as follows:

“That the said Jose Baison, on or about the 4th day of June, 1912, at the
municipality of Misamis, Province of Misamis, knowing that he was not entitled
so to do, did then and there maliciously and unlawfully vote at the general
elections for delegates to the Philippine Assembly, and provincial and municipal
officials, the said Jose Baison being then and there delinquent in the payment
of land taxes in the amount of P56.88 for the years 1908, 1909, 1910, and 1911,
contrary to the statute in such cases made and provided.—Misamis, Misamis,
September 29, 1913,”

The defendant was arraigned on September 29, 1913, at which time the court
asked him the following question:

JUDGE. You are accused of having violated paragraph 4 of section 30, of the
Election Law, in that you did maliciously and intentionally vote in the general
election held on June 4, 1912, you being delinquent in the sum of P56.88 in the
payment of your land taxes for the years 1908, 1909, 1910, and 1911. What do you
say to this charge? Do you plead guilty or not guilty?

DEFENDANT. Guilty.

Upon recommendation of the fiscal the defendant was
then, on September 29th, sentenced to imprisonment for the period of one month
and to the payment of the costs. On the 3d of October, 1913, the defendant was
called into court and the following proceedings were had in his presence:

FISCAL (addressing the court.) I ask permission of the court to amend the
information presented in this case by changing the word “Baison” to “Vayson” and
the number “4” just after the word “paragraph,” substituting therefor number 1,
so that the same will read “Paragraph number 1.”

COURT. The motion is admitted.

COURT (addressing the defendant). Are you the vice-president of the town of
Misamis, Province of Misamis?

DEFENDANT. Formerly, yes; but now, no. I presented my resignation in the
month of May.

COURT. Were you elected vice-president in 1912?

DEFENDANT, Yes, sir;

The court then revoked the sentence dated September 29,and imposed in lieu
thereof a sentence of six months’ imprisonment.

The first sentence was imposed upon the recommendation for leniency made by
the fiscal on the ground that the defendant was one “of a class of poor ignorant
persons whose violations of the Election Law should not be punished too
severely, owing to their want of education,” The proceedings had on the 3d of
October developed that the defendant had been vice-president of his
municipality, was a candidate for that office when he committed the offense for
which he was charged, and had been delinquent in his taxes for four years. The
court considered these facts sufficient to call for the imposition of a heavier
penalty. Both sentences were within the discretion reposed in the trial court
under the first paragraph of section 30 of the Election Law, defining and
penalizing the offense of which the defendant was guilty. In our opinion the
imposition of six months’ imprisonment is not excessive. This punishment is now
questioned on that ground.

The information was amended, as above indicated, after the defendant had
entered his plea, but the changes made were mere corrections of clerical errors
and did not change the allegations concerning the commission of the crime. The
defendant was charged originally with a violation of paragraph 4 of section 30
of the Election Law, but the allegations which follow in the second paragraph of
the original information and the explanation given the defendant by the court
show that it was the first paragraph of section 30 which was violated and not
the fourth. The fourth paragraph penalizes the act of taking or subscribing to
any false oath concerning any material fact in any registration or election
proceedings, while the first paragraph penalizes any person who votes or
attempts to vote, knowing that he is not entitled so to do. The result is that
the correction of the clerical errors in the complaint could not and did not
prejudice the rights of the defendant.

We will now inquire whether the court had the power under the facts and
circumstances above set forth to set aside its original judgment and impose the
penalty of six months. In determining this question it must be borne in mind
that the defendant had served no part of the original sentence when the second
sentence was pronounced.

In the case of Arnedo vs. Llorente (18 Phil. Rep., 257), this Court
said: “When not otherwise provided by statute, all courts in the Islands have
plenary control over the proceedings had before them, as also of judgments
therein, until such judgments become final in the sense that the party in whose
favor they are rendered is entitled as of right, to have execution thereon, and,
in the exercise of a sound discretion, the courts may take such action touching
the vacation and amendment of these judgments as truth and justice may
require.”

This doctrine, as to civil cases, has recently been affirmed in De Fiesta
vs. Llorente (25 Phil. Rep., 554); and Broce vs. Apurado (26 Phil.
Rep., 581). Does it apply to criminal cases? In United States vs.
Crossfield (24 Phil. Rep., 321), this court held that the Court of First
Instance had no power to modify its judgment in a criminal case after the
expiration of the period for appeal. This case negatively admits the proposition
that a Court of First Instance would have the power to modify its judgment in a
criminal case before it became final, that is, before the expiration of the time
allowed for an appeal, is it true that the accused may not object to such action
on the part of the court when the proposed change is not desired by him? Upon
this precise question, we are not aware of any precedents in this jurisdiction.
The case of Ex parte Lange (85 U. S., 163, 21 L. ed., 872), states the
general rule as follows: “The general power of the court over its own judgments,
orders and decrees, in both civil and criminal cases, during the existence of
the term to which they are first made, is undeniable.”

That case, however, must be considered as an exception to the general rule
thus announced. Whereas, the statute provided for imprisonment or a fine, the
court had imposed imprisonment and a fine. The prisoner had paid the
latter and had served five days of the prison sentence, when the court, during
the same term, called him to the bar and amended its judgment so that it called
for imprisonment only. The Supreme Court held that the payment of the fine was
an authorized punishment for the crime and that the revision of the sentence was
in effect subjecting the prisoner to a second punishment, which was contrary to
the jeopardy clause of the Constitution. This exception to the general rule has
been recognized in a number of cases, the majority of which are referred to in
the Notes of United States Reports, vol, 8, p. 159. But it is apparent that, as
the present defendant had served no part of the original sentence, he cannot
bring himself within the exception.

In Bradford vs. People (22 Colo., 157), judgment calling for
imprisonment for one year was pronounced on January 28. On January 31, the
court, on its own motion, set aside this judgment and entered another,
sentencing the defendant to imprisonment for one year on each of three counts.
As it was specifically provided, however, that all of these sentences should run
concurrently, the aggregate of the sentences in the revised judgment was the
same as the first.

The court said: “In cases where the defendant has entered upon the execution
of a valid sentence, it is well established that such sentence cannot be set
aside and a new sentence entered. The sentence in this case was for the full
term of one year in the state penitentiary, and his incarceration in the county
jail of Arapahoe county, temporarily or otherwise could not be credited upon his
term; it was simply a means
to an end, in order that the defendant might not
escape until he could be safely conveyed to and lodged in the state
penitentiary. It was no part of his sentence under the statute, and the time so
spent could not be deducted from his term, as it is provided that the term shall
be computed from and including the day on which he is received into the
penitentiary.”

In Tillman vs. State (58 Pla., 113), it was said that “during the
same term of court at which the sentence is imposed, before the defendant had
begun serving such sentence, the trial judge has the power to modify such
sentence.”

In State vs. Dougherty (70 Iowa, 489), judgment was entered against
the defendant on his plea of guilty for a fine and costs. At the same term and
before any part of the judgment had been complied with, the court set the
judgment aside and entered another judgment, which imposed a greater fine.

The appellate court said: “The question in the case is whether the court,
after it had entered a judgment in regular form against the defendant, had the
power, at the same term and before any part of the judgment had been performed,
to set that judgment aside, and enter another judgment against him imposing a
heavier penalty. The power of the courts to revise, correct and change their
sentences, at the term at which they are pronounced, and before anything has
been done under them, has long been recognized both in this country and in
England; and the cases are numerous in which the power has been exercised. (See
Com. vs. Weymouth, 2 Allen, 144; U. S. vs. Harmison, 3 Sawy.,
556; Memphis vs. Brown, 94 U. S., 715; Ex parte Sawyer, 21 Wall., 235;
Burnside vs. Ennis, 43 Ind., 411; Regina vs. Fitz gerald, 1
Salk., 401; Rex vs. Price, 6 East, 323; Rex
vs.
Leicestershire Justices, 1 Maule & S., 442.)”

In State vs. Hughes (35 Kan., 626), the defendant was sentenced to
imprisonment at hard labor in the penitentiary for six months. Within an hour
after sentence was pronounced, the attention of the court was called to the fact
that no person could be sentenced to imprisonment at hard labor in the state
prison for less than one year. The court thereupon proceeded to sentence the
prisoner to imprisonment for a term of one year.

The supreme court said: “The sentence first pronounced against the defendant
was not executed or put into operation and ‘so long as it remained unexecuted,
it was, in contemplation of law, in the breast of the court, and subject to
revision and alteration.’ (Com. vs. Weymouth, 2 Allen, 147.) We think it was
clearly within the discretion and power of the court until the end of the term,
to amend and revise or increase the sentence which had not gone into effect. (1
Bish. on Gr. Proc., sec. 1298, and cases cited.) As nothing had been done under
the sentence first pronounced, and as the final sentence did not impose a
penalty in excess of that provided by law, the rights of the defendant were not
infringed upon, nor has he any ground for complaint”

In Commonwealth vs. Weymouth (2 Allen, Mass., 144; 79 Am. Dec, 776), the
defendant was first sentenced to two years’ imprisonment in a house of
correction. On the next day, the prosecuting attorney moved for a revision of
the sentence and, over the prisoner’s protest, additional testimony was heard,
after which the original judgment was revised and the defendant sentenced to
imprisonment in the state prison for three and one-half years, the first two
days of which were to be solitary. After citing authorities, the court held the
rule to be that if no action has been taken, there is no good reason for
refusing to vacate the judgment for sufficient cause and substituting a new one
in its place.

The court said: “The petitioner in the present case is not subjected by the
amended sentence of the court to any punishment for his offense other or greater
than that allowed by law. He was never taken or charged on the warrant which was
issued on the sentence as originally pronounced. That sentence never went into
operation, and in effect, was the same as if it had never been passed. So long
as it remained unexecuted, it was, in contemplation of law, in the breast of the
court, and subject to revision and alteration. He was not injured or put in
jeopardy by it any further than he would have been by a conclusion or judgment
of the court as to the extent of his punishment, which had not been announced.
Until something was done to carry the sentence into execution, by subjecting the
prisoner to the warrant in the hands of the officer, no right or privilege to
which he was entitled was taken away or invaded by revoking the sentence first
pronounced and substituting in its stead the one under which he now stands
charged. If it had appeared that the petitioner had actually been taken and
committed under the first sentence, or if he had been thereby condemned to
imprisonment in the state prison, so that the term of his sentence would be
computed from the time he was first ordered to remain in the custody of the
sheriff, according to the statutes of 1859, chapter 248, we might have arrived
at a different result; but on the record as it stands, we are all of opinion
that the order must be, Prisoner remanded.”

In Lee vs. State (32 Ohio, 113), the defendant pleaded guilty to a
charge of illegally selling intoxicating liquor and was sentenced to pay a fine
and costs of the cause. These proceedings were had on May 12, 1874, but no steps
were taken to carry the sentence into execution. On the 15th of the same month,
the defendant was again before the court, this time on a charge of selling
liquor to a minor, and the court then finding that in passing the said sentence
it had acted under a misapprehension of the facts of the case, and that no
portion of said fine and costs had been paid or secured, and that the defendant
had not, been taken into custody under said judgment, set aside the same, and
proceeded, over the defendant’s objection, to sentence him to a heavier
fine.

The court said: “The single question is, had the court the power to
revise and increase its judgment, at the same term before any part of the fine
and costs had been paid, and before any steps had been taken to execute it?

“That this power exists, is settled by a long line of decisions of the
highest authority. * * *

“It appears from the record, that in passing the first sentence, the court
acted under a misapprehension of the facts.

“In the absence of a showing to the contrary, we must presume that there were
sufficient reasons addressing themselves to the sound judicial discretion of the
court for such action, and that it was deemed to be necessary in furtherance of
justice and the due administration of the law. It is said this is a dangerous
power. The same may be said of the exercise of all judicial discretion. This is
equally as true of the discretion exercised in the first instance, in fixing the
sentence, as in that exercised in revising it.

“If the court in revising its own sentence confines itself to such
information as it has the right to have in the first instance, no greater danger
of abuse exists than in the exercise of judicial discretion in rendering its
first judgment.

“The power to revise judgments of the same term, and, before execution has
commenced, to correct errors and mistakes is necessary for the protection of the
defendant, as well as the public, and may be exercised as well in his favor as
against him, when the court has been misled by mistake or
fraud.”

In Nichols vs. United States (106 Fed., 672), the Circuit Court of
Appeals for the Eighth District had under consideration the act of a district
judge under the following circumstances: After verdict and before rendering
sentence, the judge called the attorney for the defendant to the bar and asked
if it was the intention to prosecute the matter any further, and, understanding
that it was not, the court stated that he would enter a fine of $100 against the
defendant and imprisonment for six months. Thereupon counsel said that he
intended to prosecute an appeal, and the court called up the defendant, who was
still within the bar, and directed the clerk to enter a fine of $100 and
imprisonment for twelve months.

The Circuit Court said: “The extent of the punishment to be inflicted on the
defendant, within the limit prescribed by the statute for the offense, rested in
the sound judicial discretion of the court. The imposition of the first sentence
did not put an end to the exercise of this discretion. The first sentence was
not recorded. The defendant had not yet left the bar, and had not satisfied or
suffered any part of the punishment thereunder, when it was set aside and the
second sentence imposed. Under these conditions, it was competent. for the court
to reconsider its sentence and impose a different one. (Ex parte Lange, 18
Wall., 163; 21 L. ed., 872.) The bill of exceptions does not show that the first
sentence was set aside, and the second imposed, doubling the period of
imprisonment, because the defendant had declared his intention of appealing the
case. A new sentence, with enhanced punishment, based upon such a reason, would
be a flagrant violation of the rights of the defendant. It would be the
infliction of a penalty for the exercise of a clear legal right, and would call
for the severest censure. But no such motive can be imputed to the court below.
This court is bound to presume that the lower court, in recalling its first and
imposing a second and more severe sentence, did so from right and proper
motives, and for the purpose of imposing a punishment which, upon reflection, it
deemed better suited to the offense.”

In England the authorities are the same way. In King vs. Price (6
East, 323; 102 Eng. Rep., 1310), the defendant was convicted of illegally voting
at an election and was sentenced to one month’s imprisonment in Newgate and to
be then transported beyond the seas for seven years. At the same term and upon
further consideration of the law governing the case, the court proceeded to
impose a more severe sentence.

The recently compiled encyclopedia, entitled the Laws of England (vol. 9, p.
377), affirms the rule as follows: “The court may at any time during the same
assizes or sessions, before the judgment has been entered on the record, vacate
the judgment passed and substitute another.”

American textwriters are also in full accord with the doctrine under
discussion. Black on Judgments, section 153 (citing State vs.
Dougherty, 70 Iowa, 439, supra), says:

“It is even held that the court, in a criminal action, may set aside a
judgment made in regular course, imposing on the defendant a fine and the costs
of the proceedings, during the same term at which the judgment was rendered, and
before any part of it has been performed, and may impose a greater fine than was
imposed by the first judgment.”

In 12 Cyc, 783, it is said: “At any time during the term the court has the
power to reconsider the judgment, and to revise and correct it by mitigating and
even by increasing its severity, where the original sentence has not been
executed or put into operation; but where the prisoner has paid his fine or his
imprisonment has begun, the court has no power to recall him to revoke his
former sentence and impose one which inflicts a greater punishment.”

And in 1 Bishop’s New Crim. Procedure, sec. 1298, it is said: “The power of
the court to alter its docket entries and records during the term wherein they
are made includes the right within such time to revise, correct and change its
sentences, however formally pronounced, if nothing has been done under them. But
steps taken under a sentence— for example, a substantial part execution
thereof—will cut off the right to alter it, even during the term, and with the
expiration of the term the power expires.”

As was said in the Arnedo case, the term system in vogue in the United States
and England has no place in this country. The power of the courts in this
country over their judgments expires when they become final. Between the entry
of the judgment and the date it becomes final is a period allowed by law for
appeal or vacation of the judgment entered. It is during this period of time and
to the same extent as the courts of England and America, that our courts have
control over their judgments to modify and revise.

The authorities we have reviewed above demonstrate that until a criminal
judgment has become final and unless the defendant has complied in whole or in
part with the penalty imposed, the court may revise its judgment by either
increasing or decreasing the penalty imposed, so long as it keeps within the
limits of the penalty provided by law. Such a modification of the sentence is
within the sound discretion of the court, and unless a review of the evidence
shows that such discretion has been abused, affords no basis for complaint on
the part of either the prosecution or the defendant.

In the present case the revised judgment of the court relates that the
defendant “has not yet begun to serve the sentence imposed upon him.” The facts
developed upon the. second hearing show clearly that the court did not abuse its
discretion in revising his sentence. There is therefore no reversible error in
the judgment appealed from and it is hereby affirmed, with costs against the
appellant.

Arellano, C. J., Carson and Araullo, JJ., concur,

Moreland, J., concurs in the result.