(*30 ` FEDERAL nnronrnn;
<‘Pl.. (8th Ed.;) §§ 550, 912; 1 Chitri Criml Law, 695; This rule must,
··flt would seem, apply with equa.l force tofall subsequent modifications of
~·?the sentence proper, though apparently formal and unimportant., The
irniomentlthe right to change the sentence at all, in the absence of the de-
5 fendant; is conceded, the door is open tothe admission of the most rad-
ical _and sweeping amendments, in direct violation of the humane prin-
ciple upon ·which the rule in question rests. If, therefore, the court
were now satisfied that this clearly recognized provision of the law had
been violated, the case would be a plain one; but it is contended that
the designation of the place of imprisonment is no part of the judgment.
The criminal jurisdiction of the national courts being purely statutory,
it is urged that the court has authority after sentence is pronounced, and
in the absence of the defendant, to enter an order at any time during the
term naming the prison where the sentence is to be executed; and, fur-
ther, that the court may, in its discretion, make a general order to this
-;etliect,· including all or any given number of prisoners sentenced at the
_ A term. Section 5541 of the Revised Statutes provides: ` ,
v_` j ."In every case where any person coniricted of any offense against the United
States is sentenced to imprisonment for a period longer than one year, the
court by which the sentence is passed may order the same to be executed in
any state jail or penitentiary, " etc. · _- -
To the same effect are sections 5542 and 5548. By these provisions
congress clearly recognizes ia distinction between a sentence and an or-
, der for the execution of the sentence,. After the former has been passed,
the order is made designating the prison, but the order is not necessarily
s a part of the judgment of the court.
This construction is confirmed by an examination of section 5546,
(amended 19 St. at Large, 88,) which permits the attorney general, in
certain cases, to change the place of imprisonment- of any prisoner of
. the United States. If the law—makers had regarded the designation of
the prison as a part of the solemn judgment of the court, it is hardly
probable that they would have lodged with an executive officer the power,
not only to change and modify that judgment, but to do this in the ab-
sence of the prisoner by a mere stroke of the pen. It is true that, in
this district, in every case where an infamous crime has been charged, _
” the defendant’s presence has been required at every step of the proceed-
ings, but in other districts the practice adopted in this cause has been
· sanctioned by judges who have had long experience in administering the
· criminal law- ·
~ · The right to change the place of confinement in the absence of the
prisoner has been asserted, and frequently exercised; sometimes upon
the request of the prisoner himself, sometimes through the solicitation
— of his relatives and friends, and sometimes from motives of public pol-
~ icy. There can be no reason founded upon principle why the prisoner
' should be present when the order effecting this change is signed. To
require such presence would often be attended, not only with large and
_ f useless expense, as in the case at bar, but with annoyance, inconven—
· ience, and delay, not only to the officers of the law, but to the prisoner