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(125 N.E.)

existing at any time is not abrogated so representative of the decedent having been long as the facts which give rise to it and which must be proven to maintain it are unchanged. Patterson v. Patterson, 59 N. Y. 574, 17 Am. Rep. 384; Walters v. City of Ottawa, 240 Ill. 259, 88 N. E. 651; Read v. Brown, 22 Q. B. Div. 128; Baltimore & O. R. R. Co. v. Larwill, 83 Ohio St. 108, 115, 93 N. E. 619, 34 L. R. A. (N. S.) 1195.

appointed, constituted a right of action to the personal representative. It was thus prior and subsequent to the amendment of 1911. The amendments to section 1902, subsequent to 1894, have not altered those facts from which the right of action has arisen. Whenever, in the trial of the action, those facts have been or are proven and found to exist,

On December 31, 1894, the section 1902 the representative has maintained the ac

was:

"The executor or administrator of a decedent, who has left, him or her surviving, a husband, wife, or next of kin, may maintain an action to recover damages for a wrongful act, neglect, or default, by which the decedent's death was caused, against a natural person who, or a corporation which, would have been liable to an action in favor of the decedent, by reason thereof, if death had not ensued. Such an action must be commenced within two years after the

decedent's death."

Sections 1903, 1904, and 1905 designated as the beneficiaries of the damages the spouse and the next of kin of the decedent, and the measure and distribution of damages. The measure of damages has not been changed. In 1909, by amendment (Laws of 1909, c. 221), there was added to section 1902 the words: "When the husband, wife or next of kin, do not participate in the estate of decedent, under a will appointing an executor, other than such husband, wife or next of kin, who refuses to bring such action, then such husband, wife or next of kin shall be entitled to have an administrator appointed for the purpose of prosecuting

such action for their benefit."

In 1915, by amendment (Laws 1915, c. 620), there was interpolated in the first sentence of the section immediately following the words, the "executor or administrator" the words, "duly appointed in this state, or in any other state, territory or district of the United States, or in any foreign country." Section 1903 was amended in 1911 as we have stated, in 1904 (Laws of 1904, c. 515) manner immaterial here, and in 1915 (Laws of 1915, c. 611) so as to make it applicable to damages obtained through a settlement without action, and so as to declare the original direction of distribution subject to two modifying provisions additional to that enacted in the amendment of 1911.

Manifestly, section 1902 declares, and prior to January 1, 1895, declared, the facts from which the right of action arises. The facts declared by it have remained unchanged. The amendments to it have not added to or taken from those facts. Those facts, (a) the death of a human being, (b) caused by the wrongful act, neglect, or default of another, (c) who or which would have been liable to an action in favor of the decedent, by reason thereof, if death had not ensued, (d) a husband, wife, or next of kin of the decedent surviving the decedent, and (e) a personal

tion and has been or is entitled to a judgment for damages. Oldfield v. New York & H. R. R. Co., 14 N. Y. 310; Ihl v. Forty-Second Street & G. St. F. R. R. Co., 47 N. Y. 317, 7 Am. Rep. 450; Murphy v. Erie R. R. Co., 202 N. Y. 242, 95 N. E. 699. The right of action existing on December 31, 1894, has not been abrogated or affected by the amendment.

[7] The executor and the grandchildren assert and argue: Prior to the amendment of 1911 the right of action was a collective right of the spouse and next of kin of the decedent; the amendment transformed it (no children surviving) into a right of action for the spouse alone; therefore the amendment abrogated the right of action belonging to the next of kin and guaranteed to them by the Constitution. "It is quite clear, therefore," the executor states, "that the amendment to section 1903 does not merely purport to regulate the distribution of damages, but purports to limit the cause of action by excluding therefrom the right of action which was guaranteed to certain next of kin (in this particular case the testator's grandchildren), by virtue of the constitutional

amendment."

Therefore the amendment violates the Constitution and is void. The first proposition of the assertion is erroneous. The right of action was not a right of action of the spouse and next of kin. The statute did not, at the taking effect of section 18, art. 1, of the Constitution, vest the right of action in or give it to any of the statutory distributees of the damages recovered. The statute vested the right of action exclusively in the representative of the decedent; it vested the right to the damages exclusively in the spouse and next of kin. It "declares that a right of action arises to the administrator." Quin v. Moore, 15 N. Y. 432, 435. The statute gives a right of action for the wrongful act "to the representatives of the deceased, for the pecuniary consequences suffered by the husband, wife or next of kin from such wrongful act. cause of action here provided for does not purport to be in any respect a derivative one, but is an original right conferred by the statute upon representatives for the benefit of beneficiaries, but founded upon a wrong already actionable by existing law in favor of the party injured, for his damages. The cause of action thereby [by the statute] given is not to the estate of the deceased person, but to his or her representatives as trustees, not for the purposes of general ad

The

ministration, but for the exclusive use of instances spoken of the right of action or specified beneficiaries." Hegerich v. Keddie, 99 N. Y. 258, 267, 1 N. E. 787, 792, 52 Am. Rep. 25. In Matter of Meekin v. B. H. R. R. Co., 164 N. Y. 145, 148, 58 N. E. 50, 51, 51 L. R. A. 235, 79 Am. St. Rep. 635, Judge Vann said:

"Some confusion has arisen because the statute creates a property right out of an injury to the person, and confers it not upon the one injured but upon his representatives for the benefit of his wife and next of kin."

In Matter of Taylor, 204 N. Y. 135, 139, 97 N. E. 502, 503 (Ann. Cas. 1913D, 276) Judge Haight said:

"For many years the statute of this state has given a right of action to the executors or administrators of a decedent who has left him or her surviving a husband, wife, or next of kin, to recover damages for the benefit of such husband, wife or next of kin for a wrongful act, neglect, or default of any person or corporation by which the decedent's death was caused. * The right of action is not given to the widow and next of kin. It is given to the administrator of the decedent for their benefit."

the cause of action as the property of the beneficiary or beneficiaries. Our decisions have uniformly been as they must be, in virtue of the language of section 1902 from the time of its enactment, that the right of action is exclusively given and belongs to the representative.

The right to the damages is not a constituent part of the right of action. The ownership of the next of kin, prior to January 1, 1895, of a part of the damages recovered, was not a fact upon which the right of action in conjunction with the remedy, the right to at all depended. The right of action creates, damages. Before the right to damages exists or accrues, the right of action must be complete and perfect. Could and should one of several distributees, during the pendency, or prior to the commencement, of the action, release to the defendant or party liable his right to share in the recovery, thus destroying the right, the right of action would not be abrogated or affected. The amount of the damages recoverable might be lessened, but the facts which constituted the right of action and the right would continue. In this statu[8] The section 1902 so declares. A right tory action the statutory direction of 1911, of action belongs to or is vested in the per-changing the recipients of the distribution son or persons who has or have the lawful and continuing to confine them to those for right to prosecute it. When a statute creates whose benefit the statute, within its clear a liability and prescribes the person who and expressed intendment, was enacted, did shall have the right to enforce it, the latter is as component a part of the statutory right of action as is the former. The right of the specified person to maintain the action and his existence is as integral in the right of action as the liability of the defendant. Crapo v. City of Syracuse, 183 N. Y. 395, 76 N. E. 465; Usher v. West Jersey R. Co., 126 Pa. 206, 17 Atl. 597, 4 L. R. A. 261, 12 Am. St. Rep. 863. The right of action here is vested exclusively in the representative. It is a general principle of construction that, where a right is given by statute and a remedy provided in the same act, the right can be pursued in no other mode. It is obvious that a right of a person who is incapable of presenting it for judicial enforcement is not a right of action. Because the damages which the right of action produces are the property of the statutory distributees and the right to them is a property right (Matter of Meekin v. Brooklyn Heights R. R. Co., 164 N. Y. 145, 58 N. E. 50, 51 L. R. A. 235, 79 Am. St. Rep. 635), we, in treating of the damages, have in

not abrogate the right of action. Inasmuch as the death of the decedent occurred subsequent to the amendment of 1911, the rights of the grandchildren were, obviously, subject to the force of the amendment.

The order of the Appellate Division should be reversed, and the decree of the Surrogate's Court modified so as to decree that Elizabeth Bischoff is entitled to and be paid the entire distributable balance of the recovery in the death action with accrued interest thereof, with costs in the Appellate Division and in this court to the special guardian, respondent, payable out of the fund.

HISCOCK, C. J., and CHASE, HOGAN, MCLAUGHLIN, and CRANE, JJ., concur. POUND, J., dissents and votes for affirmance on the ground that the legislative language and policy should not be construed as excluding grandchildren from participating in the recovery.

Order reversed, etc.

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1. CRIMINAL LAW 977(3)-IMMEDIATE SEN- lose jurisdiction to collect a fine by imprisonment.

TENCE.

The effective administration of the criminal law requires that one who pleads guilty, or is convicted of a violation of law, shall be promptly and certainly punished, and no court has authority to suspend sentence indefinitely, it being its duty to pronounce judgment at the term at which conviction is had, unless, on motion for new trial, in arrest, or for other cause, the case is continued for further adjudication, and defendant, by recognizance or being held in custody, is still required to answer the charge.

2. CRIMINAL LAW 977(3)-LOSS OF JURIS

DICTION BY SUSPENSION OF SENTENCE.

If sentence is indefinitely suspended, the court loses jurisdiction, and a judgment subsequently entered is void.

3. CRIMINAL LAW 993, 998-VACATION OR CHANGE OF JUDGMENT WHILE UNEXECUTED.

As a general rule a court retains jurisdiction over a judgment during the term at which it is rendered, and for proper cause may vacate the judgment during the term, but, in a criminal case, the court can only vacate or change the judgment while it remains unexecuted, and is without jurisdiction to vacate or change it after the prisoner has begun serving

his sentence.

4. CRIMINAL LAW 996(2)-AMENDMENT OF JUDGMENT NUNC PRO TUNC AFTER TERM.

The record of a judgment, not void or entered without jurisdiction, may be amended after the term at which made by a nunc pro tunc order when it does not, by reason of clerical misprision, speak the truth, provided there is suficient basis in official or quasi official records to authorize the amendment, as some note, memorandum, or memorial remaining in the files or on the records of the court; for amendment cannot rest in the recollection of the judge or other persons, or be based on ex parte affidavits or testimony after the event.

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CARTWRIGHT, J. A writ of habeas corpus was awarded on petition of Max Fensky, who prayed to be relieved from imprisonment by George F. Leinecke, sheriff of Du Page county, on the grounds that the county court of that county in which he was convicted of selling intoxicating liquor without a license lost jurisdiction over him by delay in the execution of the sentence; that the 5. CRIMINAL LAW 1111(2), 1144(17)-AB- judgment and process were amended after SENCE OF BILL OF EXCEPTIONS SHOWING ON his imprisonment began, and that the inforWHAT AMENDMENT OF JUDGMENT WAS BASED. mation upon which he was convicted was In the absence of bill of exceptions show-verified by the state's attorney on informaing what was before the court to support tion and belief. The cause was submitted amendment of judgment nunc pro tunc after term to amplify its language, the recital of the for decision upon the petition, the return of record that there were sufficient memoranda the respondent, and the record. to sustain the action taken must be accepted as true and the amendment taken as properly made.

The relator, Max Fensky, was found guilty in the county court of Du Page county, as charged in an information containing 12

6. CRIMINAL LAW 996(2)—AMENDMENT OF counts, for selling intoxicating liquor in less

JUDGMENT AFTER TERM.

Where there was no material change in the judgment record by its amendment nunc pro tunc after term, the fact that defendant had begun serving his sentence did not affect the court's jurisdiction.

quantities than one gallon without having a
This was at the June term,
legal license.
1918, of the court, and on September 23, 1918,
a day of that term, he was sentenced to
pay a fine of $100 and costs on each of the
first five counts, and as to the remaining

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
125 N.E.--33

seven counts judgment was reserved to apple v. Whitman, 277 Ill. 408, 115 N. E. 531. future date. On November 27, 1918, being The relator was serving his sentence at the still of the June term, a mittimus was is- time of the amendment of the judgment and sued directing the respondent forthwith to mittimus, and the amendment was after the take the body of the relator and him safely term at which he was convicted. There was, keep until he should pay a fine of $500 and however, no change in the judgment, and the costs. Upon receipt of the writ the respond- amendment consisted merely in amplifying ent made efforts to serve the same, and con- the language of a judgment that was not tinued such efforts without success until void or entered without jurisdiction. The February 28, 1919, when he took the re-record of such a judginent may be amended lator into custody under the writ. The mit- after the term at which it is made, by an timus did not accord with the judgment, but order of the court entered nunc pro tunc, recited a judgment for a fine of $500 and when by reason of clerical misprision it does costs, and commanded the respondent to keep not speak the truth, provided there is suffithe relator until he paid the said sum of $500 cient basis in official or quasi official records and $146.65 costs. At the January term, to authorize the amendment. There must 1919, on March 14th, after the arrest of the be some note or memorandum or memorial relator, the judgment as entered by the paper remaining in the files or upon the recclerk was amended, so that, instead of read-ords of the court on which to base the amending that the relator was adjudged to pay a ment, and it cannot rest in the recollection fine of $100 on each of the first five counts of the information, and costs, the judgment was expanded so as to make a separate recital as to each of the first five counts, but the judgment was not changed or altered, in legal effect, in any way. An amended mittimus was issued in accordance with the judgment as amended, and the respondent claimed to hold the relator in custody by virtue of the amended mittimus.

of the judge or other persons, or be based upon ex parte affidavits, or testimony after the event has transpired. Dougherty v. People, 118 Ill. 160, 8 N. E. 673; Hubbard v. People, 197 Ill. 15, 63 N. E. 1076. The record in this case recites that there were sufficient memoranda of the court and the clerk in the files and records of the cause to amend the judgment, if it could properly be termed an amendment. In the absence of a bill of exceptions showing what was before the court, the recital of the record must be taken as true, and the amendment properly made. As

amendment, the fact that the relator had begun serving his sentence did not affect the jurisdiction of the court.

[1, 2] The effective administration of the criminal law requires that one who pleads guilty or is convicted of a violation of the law shall be promptly and certainly pun-there was no change in the judgment by the ished, and no court has authority to suspend sentence indefinitely in such a case. It is the duty of the court to pronounce judgment at the term at which the conviction is had, unless upon a motion for a new trial, in arrest of judgment, or for other cause the case is continued for further adjudication, and the defendant, by recognizance or being held in custody, is still required to answer the charge. If sentence is indefinitely suspended the court loses jurisdiction, and a judgment subsequently entered is void. People v. Allen, 155 Ill. 61, 39 N. E. 568, 41 L. R. A. 473; People v. Barrett, 202 Ill. 287, 67 N. E. 23. 63 L. R. A. 82, 95 Am. St. Rep. 230. The court, by reserving judgment for an in-prisonment. From that time he was allowed definite period as to the seven counts, lost jurisdiction as to them; but the mittimus was issued upon the judgment properly entered as to the first five counts, and the court did not lose jurisdiction by any postpone ment of sentence

[7, 8] The law demands that a judgment in a criminal cause shall be carried out promptly, and, even where the judgment is valid, there may be circumstances under which a court will lose jurisdiction to collect a fine by imprisonment. That was the case in People v. Shattuck, 274 Ill. 491, 113 N. E. 921, where Shattuck, on November 16, 1909, pleaded guilty to 15 counts charging him with selling intoxicating liquor in antisaloon territory. Judgment was entered, and he made a motion to vacate the order of im

to go at liberty for a period of over six years, while no steps were taken to carry out the judgment, and it was held that a defendant in a criminal case cannot be subject to the mere caprice of a judge, which would indirectly confer upon the judge powers which [3-6] As a general rule a court retains he does not possess. There was no unreajurisdiction over a judgment during the term sonable delay in this case which could at which it is rendered, and may for proper operate in any manner to the prejudice of cause vacate the judgment during the term; the relator. The order of imprisonment to but in a criminal cause it can only vacate or collect the fines and costs was merely an inchange the judgment while it remains un- cident to a valid judgment for the fines and executed, and is without jurisdiction to va- the means to enforce their collection (Ex cate or change the judgment after the prison- parte Bollig, 31 Ill. 88), and the mittimus er has begun serving his sentence. People was issued during the same term at which v. Turney, 273 Ill. 546, 113 N. E. 105; Peo- the conviction took place, and was not void.

(125 N.E.)

be disregarded on appeal, where the judge's certificate to the bill does not refer to the matter, and the clerk certifies "the original bill of exceptions containing the evidence"; the matter not being proper for a general bill, and hence must be treated as surplusage.

Appeal from Criminal Court, Marion County; James A. Collins, Judge.

James Barksdale was convicted of violations of the prohibition law, and appeals.

[9.0] The fact that the information was verified by the state's attorney on information and belief would not, in any event, affect the jurisdiction of the court. ecution upon such an information is an invasion of a constitutional right (People v. Clark, 280 I11. 160, 117 N. E. 432; People v. Honaker, 281 Ill. 295, 117 N. E. 997); and a denial of the constitutional right would be error for which the judgment would be reversed on a writ of error. It was a right which could be waived (People v. Powers, 283 Ill. 438, 119 N. E. 421; People v. Reed, 287 R. L. Bailey, of Chicago, Ill., for appellant. Ill. 6C6, 122 N. E. 806); and it was waived by Ele Stansbury, of Indianapolis, and Dale the relator, who failed to insist upon his right. F. Stansbury, of Covington, for the State. The court having jurisdiction to pronounce the judgment, and there being no subsequent tried, and convicted in the criminal court of MYERS, J. Appellant was prosecuted, loss of jurisdiction by any action of the Marion county on an affidavit charging a viocourt or failure to act, the relator is re-lation of certain provisions of what is known manded to the custody of the respondent.

Relator remarded.

(189 Ird. 170)

TIVELY.

Affirmed.

as the "Prohibition Law" (Acts 1917, p. 15).

The affidavit was in eight counts. Appellant's motion to quash, addressed to the first BARKSDALE v. STATE. (No. 23570.) * count only, was sustained. A trial by the court without a jury resulted in a general (Supreme Court of Indiana. Dec. 16, 1919.) finding of guilty, followed by judgment that he pay a fine of $100, and that he be im1. CRIMINAL LAW 211(1)-COUNTS IN AF-prisoned in the Marion county jail fo: 30 FIDAVIT SHOULD BE NUMBERED CONSECU- days. The overruling of his motion for a new trial is the only error assigned, and in support of which he relies on three causes: First, the finding of the court is not sustained by sufficient evidence; second, the finding of the court is contrary to law; third, action of the court in refusing to permit his counsel to argue the law and facts to the court after the close of the evidence and before the rendition of the judgment.

Counts of an affidavit charging crime should be numbered consecutively, and it was improper to number the first three counts of an affidavit and the second three in duplicate.

2. CRIMINAL LAW260(11)-GENERAL FINDING OF GUILTY PRESUMED RENDERED ON GOOD COUNTS.

In the absence of a motion to quash bad counts in an affidavit charging crime, or a motion in arrest of a judgment, a general finding of guilty by the court sitting without a jury will be presumed on appeal to have been rendered on good counts in the affidavit.

3. CRIMINAL LAW 260(11)-JUDGMENT ON GENERAL FINDING OF GUILTY AUTHORIZED.

In a prosecution on an affidavit containing counts predicated upon Acts 1917, c. 4, §§ 4, 15, 20, 35 (Burns' Ann. St. Supp. 1918, §§ 8356d. 83560, 8356t, 835611), a general finding by court sitting without a jury and a judgment rendered thereon in keeping with the offense defined and penalty prescribed by sections 4 and 20, separately, and the counts of the affidavit based thereon, will not authorize the court on appeal to hold that such finding is contrary to law, although the other offenses charged called for a different penalty.

4. CRIMINAL LAW260(11)-WEIGHT OF EVIDENCE FOR TRIAL COURT.

The weight of evidence is for the trial court exclusively, where there is a trial by the court without a jury; and where there is evidence to support the finding, it will not be disturbed.

three of the affidavit on which appellant was [1] The first three counts and the next tried are numbered in duplicate. The first three charge a former conviction of appellant for like offenses committed at an earlier date, while the latter three omit this allegation. Counts of an affidavit should never be numbered in this manner.

[2, 3] The counts upon which appellant was tried and found guilty were predicated upon sections 4, 15, 20, 35, Acts 1917, p. 15 (section 8356d, 83560, 8356t, 8356i1, Burns Supp. 1918). The punishment provided in these various sections of the act for the offenses therein separately defined are not the same, nor is the count which is based on section 35, supra, good as against a motion to quash, or a motion in arrest of judgment. Ward v. State, No. 23585, 125 N. E. 397, this term. But as neither of these motions were made by appellant nor a motion for a venire de novo, the questions here indicated which would require some attention are not presented. Under this state of the record, a

5. CRIMINAL LAW 1088(18)-SURPLUSAGE general finding of guilty on an affidavit conIN BILL OF EXCEPTIONS NOT REVIEWABLE. A mere statement furnished by the shorthand reporter and included in the general bill of exceptions, containing the evidence, to the effect that after the evidence had closed counsel for appellant requested permission to argue the law and facts, and his request, was denied, must *Rehearing denied.

taining good counts and bad counts, it will be presumed on appeal that the judgment was rendered on the good counts. Parks v. State, 159 Ind. 211, 215, 64 N. E. 862, 59 L. R. A. 190; Stucker v. State, 171 Ind. 441, 443, 84 N. E. 971.

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