The specification of errors in the brief of counsel is as follows: 'The contention of the plaintiff in error is that the sentence under which he is now held puts him twice in jeopardy, and that such double jeopardy abridges his privileges and immunities as a citizen of the United States, and deprives him of his liberty without due process of law.'
Laying out of view the suggestion that the immunity from double jeopardy or double punishment of a citizen of Massachusetts, in Massachusetts, is an immunity possessed by him as a citizen of the United States as contradistinguished from a citizen of Massachusetts, we inquire whethere any law of Massachusetts abridges such an immunity, and whether that or any other action of that commonwealth deprives plaintiff in error of his liberty without due process of law. If there be no such law, and if he is suffering no such deprivation, we need not be curious in explanation of the particular ground of our exercise of jurisdiction.
The statutes of Massachusetts have provided since 1851 that 'when a final judgment in a criminal case is reversed by the supreme judicial court on account of error in the sentence, the court may render such judgment therein as should have been rendered, or may remand the case for that purpose to the court before which the conviction was had.' Acts 1851, chap. 87; Pub. Stat. chap. 187, § 13.
In this case it was on account of error in the sentence as originally imposed that that sentence was set aside. All the proceedings prior thereto stood unimpugned, and the superior court merely rendered the judgment which should have been rendered before. And this was done under the statute by direction of the supreme judicial court, whose interposition had been invoked by plaintiff in error.
The legal effect of the statute was to make it a condition of the bringing of writs of error in criminal cases that, if the error was one in the award of punishment only, that error should be corrected, and, as remarked by Chief Justice Shaw, this did not disturb the fundamental principles of right. Jacquins v. Com. 9 Cush. 279. Indeed, in many jurisdictions it has been held that the appellate court has the power, when there has been an erroneous sentence, to remand the case to the trial court for sentence according to law. Reynolds v. United States, 98 U.S. 145, 168, 25 L. ed. 244, 251; Re Bonner, 151 U.S. 242, 38 L. ed. 149, 14 Sup. Ct. Rep. 323; Henderson 11. And we have repeatedly decided that the review by an appellate court of the final judgment in a criminal case, however grave the offense of which the accused is convicted, is not a necessary element of due process of law, and that the right of appeal may be accorded by the state to the accused upon such conditions as the state deems proper. McKane v. Durston, 153 U.S. 684, 38 L. ed. 867, 14 Sup. Ct. Rep. 913; Andrews v. Swartz, 156 U.S. 272, 39 L. ed. 422, 15 Sup. Ct. Rep. 389; Kohl v. Lehlback, 160 U.S. 297, 40 L. ed. 433, 16 Sup. Ct. Rep. 304.
As this statute was reasonable, was intended for the benefit of the accused, as well as of the community, and was entirely within the admitted powers of the state, we are unable to see that it is in itself open to attack as being unconstitutional; and as this plaintiff in error set the proceedings in question in motion, and they conformed to the statute, we do not perceive how they can be regarded as otherwise than valid.
In prosecuting his former writ of error, plaintiff in error voluntarily accepted the result, and it is well settled that a convicted person cannot by his own act avoid the jeopardy in which he stands, and then assert it as a bar to subsequent jeopardy.