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~ 4 The United States vs. Benz. ment in United States v. Murray, 275 U. 8. 347, 358. In that ease this Court held that where the defendant had begun to serve his sentence, the district court was without power, under the Fro- bation Act of March 4, 1925, to grant him probation ; and, citing Ex parte Lange as authority, said: ‘‘The beginning of the service of the sentence in a criminal case ends the power of the court even in the same term to change it.’’ But the Murray case involved the construction of the Probation Act, not the general powers of the court over its judgments. The words quoted were used by was 7 a ee os way of illustration bearing upon the congressional intent, but were not necessary to the conclusion reached. That they state the rule more broadly than the Lange case warrants is apparent from the foregoing review of that case. The rule thus being settled for this court by its prior decisions, we need not discuss the conflicting state cases nor the conflicting decisions of lower federal courts which are cited, further than to say that the federal cases cited by the government in support of its position are comparatively recent, and at least in some in- stances rest upon the general statement in the Hurray case just quoted. The earlier view is to the contrary. Thus in the ease of peated y Sasa aa ba Lao WL In re Graves, 117 Fed. 798, where a person had been resentenced to serve for a period of one and one-half years after having been imprisoned for a number of days under a sentence of two years, the court refused to discharge him on habeas corpus, saying : “*It involves only the inquiry whether the court possessed the power to recall the prisoner, set aside the sentence, and impose another modified sentence during the same term, notwithstanding the fact alleged that execution of the former sentence had com- menced ; and, whatever diversity of opinion appears in other juris- dictions, the doctrine is established in the federal courts that such power exists, and that it is applicable as well where the original sentence was in excess of jurisdiction. [Citing, among other cases, Ex parte Lange and Basset v. United States, supra.) In Ex parte Lange, supra, the doctrine so stated is distinetly recog- nized, but the case is distinguished as one where the statute anthor- ized imprisonment, or fine, in the alternative only, and the sen- tence imposed both; and the majority opinion merely holds that new sentence of imprisonment alone cannot be imposed after pay- ment of the fine, which operated as a satisfaction of the prior judg SR RRM Set Se RHO US eas ek Le BU SUE ment. The sentence under which this petitioner is imprisoned is in all respects more favorable to him than was the original sen- tence, and escape therefrom is sought on the ground of change in The United States va. Benz. 5 rvice’ the place of imprisonment after he had ‘entered upon the se sentence. “ she the place of imprisonment was diseretionary, and” no | sense affected the jurisdiction, and the power of the con ea judgment within the term 1s undeniab’e (Er pa rte Lange, se ti om omen . sed, Bo paand appearing to grant the petitioner the benefits of a writ of habeas corpus, the application . ra _ With this application of the rule and interpretation of the p : : ee. cisions of this Court, we entirely agree. — : es owe find nothing in the suggestion that the action of ne ine i i ishment after the prisoner court in reducing the pun en r aban a part of the imprisonment originally imposed was an ead of the pardoning power of the executive. The judicial pow ae the executive power over sentences are readily distingwst ade. To render judgment is a judicial fanection. a orry oe i i tion, To eu ment into effect ia an executive func ; ence by an a i ise of executive power which by an act of clemency ig an exercise which abridges the enforcement of the judgment, but Oe net ae _ j tence by am ua judgment. To reduce a sent _by a ° terms of the judgment itself and is a judicial act ss much a8 th imposition of the sentence in the first instance. on the sive The question propounded must be answered in affirms It is 20 ordered. a ae A true copy. Test: Clerk, Supreme Court, U. 8 4