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eo , 2 Lhe United States v: Pan ad may be drawn that a reduction by the court of a valid sentence after it has been partly served is, in effect, an invasion of the power to pardun offenses, including the power to commute, vested in the exeeutive by Art. II, § 2, cl. 1, of the Constitution. The general rule 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’? making them, and subject to be amended, modified, or vacated by that court. Goddard v. Ordway, 101 U. 8. 745, 752. The rule is not confined to civil cases, but applies in criminal cases as well, provided the punishment be not augmented, £x parte Lange, 18 Wall. 163, 167-174; Basset y. Untted States, 9 Wall. 38. In the Present case the nower of the sanet wee prascigna tn ett! I power ol {me court Was exercised to miti- gate the punishment, not to increase it, and is thus brought within the limitation, Wharton, in Criminal Pl. and Pr., Sth Ed., § 913, says: ‘‘Ag a general practice, the sentence, when imposed by a court of record, is within the power of the court during the ses- sion in whieh it is entered, and may be amended at any time during such seasion, provided a punishment already partly suffered be not increased.” The distinction that the court during the same term may amend a sentence 80 a8 to mitigate the punishment, but not so as to in- crease it, is not based upon the ground that the court has lost con- trol of the judgment in the iatter 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 Amend- ment te the Constitution, which provides that no person shall ‘‘be subject for the same offense to be twice put in jeopardy of life or limb.’? This is the basis of the decision in Ex parte Lange supra. There, the punishment prescribed by statute was im. prisonment for not more than one year or a fine of not less than ten dollars nor more than two hundred dollars; but Lange was sentenced to one year’s imprisonment and to pay two hundred Gouars une. Hive days after the imprisonment had payment of the fine and during the same term, Lange van bout 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 Tule to be, p. 167: ‘‘The general power of the court over its own Judgments, orders, and decrees, in both civil and criminal cases, fem, ™~y ® ° The United States vs. Benz. | 3 during the existence of the term at which they are first made, 18 undeniable.’? The court declared, however, that the power could not be so used as to violate the constitutional guarantee against double punishment, holding (p- 173) that this guarantee applied to all eases where a second punishment is attempted to be inflicted for the same offense by a judicial sentence: ‘For of what avail is the constitutional protection against more than one trial if there can be any number of sentences pronounced on the same verdictt Why is it that, having once been tried and found guilty, he can never be tried again for that offence? Mani- festly it is not the danger or jeopardy of being a second time found guilty. It is the punishment that would legally follow the second conviction which is the en danger guarded against by the Constitution. But if, after Judgment | m ren conviction, and the sentence of that judgment executed on the criminal, he can be again sentenced on that conviction to another and different punishment, or to endure the same punishment 4 second time, is the constitutional restriction of any value? Is not its intent and its epirit in such a case as much violated as if a new ‘ trial had been had, and on a second conviction a second punish- mere orgasm irresistible, and we do not doubi “The argument seems to us irresistible, abi that the Constitution was designed as much to prevent the ori nal from being twice punished for the same offence as from being twice tried for it."’ But the court immediately proceeded to say, p. 174: in j for two “If the court, for instance, had rendered a judgment i isonn i tion, have ears’ imprisonment, it could no doubt, on its own motion, vacated that judgment during the term and rendered a judgmens for one year’s imprisonment; or, if no part of the sentence been executed, it could have rendered a judgment for two hun- dred dollars fine after vacating the first. 7 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, p. 175: + . a ak ok tee Dah antimale and aith- ‘« s gan the court vacate that judgment entiray, anc with it, i ther out reference to what has been done under it, impose ano’ punishment on the prisoner on that same verdict? To do ao is to punish him twice for the same offence. He is not only put in jeopardy twice, but put to actual punishment twice for the same thing.’’ The Lange case and the Basset case, supra, probably would have set at rest the question here presented had it not been for a state-