Puwish

4 To afflict with pain or loss, with a view to amendment; to impose a penalty for the commission of a crime. Punishable. Liable to punishment. * May be punished, or liable to be punished.^ Not, must be punished, but liable to be pimished.^ Punishment. Punishments are evils or inconveniences consequent upon crimes and misdemeanors, and inflicted by human laws, in consequence of disobedience or misbehavior in those to regulate whose conduct such, laws are made.^ In ex post facto laws, " punishment " is synonymous with chastisement, correction, loss, or suffering to the party supposed to be punished, and not in the legal sense which signifies a penalty inflicted for the commission of crime. Wharton's definition, "the penalty for transgx-essing the law," is, perhaps, as comprehensive and accurate as can be given. 9 The end of punishment is not atonement or expiation, but precaution against future offenses.'" The power is exercised through the means which the laws provide.'' A statute which describes an act as punishable and imposes a fine creates an offense." ' Se Denny's Estate, 8 Irish Eq, 447 (1874), Christian, Ld. J. 2 O'Brien v. Brice, 21 W. Va. 707 (1883), Snyder, J.* ' Caston V. Brock, 14 S. C. 107 (1880), Williard, C. J.; Albright V. Payne, 48 Ohio St. 14-15 (1885j, cases; 65 Pa. 311; 38 Wis. 434. * F. pmiiss-, punir: L. punire, to impose a penalty upon. ' Commonwealth v. Pemberton, 118 Mass. 42 (1875). " United States v. Watkinds, 7 Saw. 94 (1881). ' State V. Neuneri 49 Conn. 233 (1881); 58 Ga. 200. e[4Bl. Com.7. ' Exp. Garland, 4 Wall. 393 (1866), Chase, C. J. See also Matter of Bayard, 25 Hun, 546 (1881). '»[4B1. Com. 11,^3. Arbitrary punishment. Such punishment as in degree or kind is left wholly to the discretion of the- judge, in distinction from such as is defined by statute. Capital punishment. Punishment of death: originally, by decapitation. Abolished in Maine (in ISST), in Rhode Island, and in Wisconsin. Except for treason, never existed in Michigan, until April 0, 18S7.' The legislature of New York, by an act approved in April, 1888, substituted electricity, as the means of executing persons sentenced to death, for hanging. A centiuy ago, in Massachusetts ten and in Deleware twenty crimes were punishable with loss of life.'" Corporal punishment. Any kind of corporal privation or suffering which is inflicted by a sentence, directly by way of penalty for an offense. 3 Also, such chastisement inflicted by a teacher. The reasonableness of the pvmishment administered by a school teacher to a pupil is a question of fact. The teacher has a right to require obedience to reasonable rules and a proper submission to his authority, and to inflict punishment for disobedience; being governed, as to mode and severity, by the nature of the offense, the age, size, and physical condition o£ the pupil. And in punishing for a particular offense the teacher may take into consideration habitual disobedience.* Cruel, unusual punishment. " Nor " shall •'cruel and unusual punishments " be "inflicted."* The kind and degree of punishment suited to particular offenses is a matter left to the' discretion of the legislature, with the qualification above noted." Tunce punished. " Nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb." ' The punishments in use under the colonial and provincial governments were: imprisonment in the common jail; hard labor in the workhouse or house of correction; the pillory; sitting on the gallows; cropping one or both ears; branding on one or both cheeks, with indelible mk, the letter T for thief, or B for burglar; whipping; sitting in the stocks; in case of lar- ' See North Am. Eev., 1881, p. 657. M Mc Master, Hist. Peop. U. S. 100. See 1 Steph Hist. Cr. L. Eng. 457-68, 472-76. 3 People V. Winchell, 7 Cow. 525 (1837), note. » Sheehan v. Sturges, 53 Conn. 4*3-4 (1885), cases; Deskins v. Gose, 85 Mo. 485 (1886), cases: 24 Am. Law Reg. 662, 664-89 (1885), cases. « Constitution, Amd. Tin. See same prohibition in the constitutions of the States. «See Cooley, Const. 296; 18 Am. Law Reg. 681; 70 Cal. 1; 1 N. M. 415; 61 How. Pr. 294. On inequality in punishment, see 5 (3r. Law M. 16-31 (1884). ceny, restoration of threefold the value of the property with liability to be sold to service to pay it. ' No man can be twice lawfully punished for the same offense. Although there have been nice questions in the application of this rule to cases in which the act charged was such as to come within the definition of more than one statutory offense, or to bringing the party within the jurisdiction of more than one court, there has never been any doubt of its entire and complete protection when a second punishment is proposed in the same court, on the same facts, for the same statutory offense. In civil causes, the doctrine is expressed by the maxim that no man shall be "twice vexed" for one and the same cause. It is upon the foundation of this maxim that the plea of a former judgment for the same matter, whether for or against the defendant, is a good bar to an action. In criminal law, the same princijjle is expressed thus: No one can be twice punished for the same crime or misdemeanor. Protection against the action of the same court in inflicting punishment twice is as clearly within the maxim as protection from the chances of a second punishment on a second trial. Hence the pleas autrefois acquit, autrefois convict. These are principles of the common law, and embodied in all our constitutions. At the time they came into existence almost every offense was punished with death or other punishment touching the person. A second trial may be had, without violating the principle, when the jury fail to agree and no verdict is rendered, or the verdict is set aside on motion of the accused, or on a writ of error prosecuted by him, or the indictment was foimd to describe no offense known to the law. Wlien a court has imposed a fine and imprisonment, where the statute only confers power to punish by fine or imprisonment, and the fine has been paid, the power of the court to punish further is gone. One judgment only can be pronounced; if that is unwarranted by law, the court cannot modify the judgment and impose a new sentence. ' Therefore, sureties on a distiller's bond cannot be subjected to the penalty attached to the commission of an offense, when the principal has effected a compromise with the government, under the sanction of an act of Congress, of prosecutions based upon the same offense and for the same penall^^.a The principle is, that one shall not be tried a second time for the same offense, after he has been once convicted or acquitted by a verdict of a jury, and judgment has been rendered agamst him or in his favor. There is no implication that he shall not be tried a second time if the jmy in the first trial were discharged without giving a verdict, or if, having given a verdict, the judgment was arrested or a new trial granted at the request of the accused * i Jones u Robbins, 8 Gray, 348 (1857); 1 Mc Master, Hist. Peop. U.S. 100-1. 'Exp. Lange, 18 Wall. 163, 168-78 (1873), cases. Miller, J.; Exp. Gilmore, 71 Cal. 635 (1887). 102 U. S. 610 (1880). A second punishment does not arise if the court had no Jurisdiction; nor if the first indictment was clearly insufficient and invalid; nor if by any overruling necessity the jury are discharged without averdict; nor if the term of the court ends before the trial is finished; nor if the jury was discharged before verdict, by consent of the accused, expressed or implied; nor if the first verdict was set aside on motion of the accused, or on error sued out in his behalf; nor if the judgment was arrested on his motion.' Penalty, fine, and imprisonment are only one punishment for the same offense, although the penalty is rscoverable in a civil action and the others are inflicted by criminal prosecution.^ See further Assess, 2; Burning; Commutation; Jeopardy, S; Peine; Penal; Pillory; Qualify, 2; Rack; Retaliation; Servitude, Penal: Vex; Whipping.