Page:Harvard Law Review Volume 9.djvu/315

RECENT CASES. 287 for gas furnished by them to private consumers. In re Pryor, 41 Pac. Rep. 958 (Kan.). There is some conflict of opinon as to whether even the legislature, having once granted a franchise, may thereafter step in and assume to regulate prices. See Spring I'dlLy h aier Works v. ^chui/ler, i lo U. S>. 347. W here the legislature has reserved this power, it has been held that it may by express terms delegate it to a municipal corpo- ration, bta/e < f Ohio v. 'J he Cincinnati Gas Light Co., 18 Ohio St 263. The precise question presented by the principal case has arisen in but few instances. The decis- ion seems manifestly correct. The case decides that, by common law, a municipal cor- poration has no power to regulate prices, nor has it any such power implied from the legislature under a general statute providing that gas and water companies shall be subject to such regulations as the municipal authorities shall prescribe. City of Rush- ville V. hushville Gas Co., 132 Ind. 57:, is directly <rc«/r<2, but that case has been overruled by Lewi vi lie Gas L 0. v. I he State, 135 Ind. 49, which is in accord with the decision in the principal case. See also Cityoj St. Louis v. Bell Telephone Co., 96 Mo. ^2Ty, accord. Criminal Procedure — Excessive Sentence — Habeas Corpus — Jurisdic- tion. — Petitioner was sentenced to imprisonment for five years for a crime for which the court had no authority to impose a sentence in excess of two years. He applied for a writ of habeas corpus. LLeld.^ that, when a court had jurisdiction of the person and the offence, the imposition of an excessi^^e sentence was not an act without its jurisdiction which could be attacked by habeas corpus if the legal part of the sentence was separable from the excess; but was merely an error which as to the excess should be corrected by writ of error. Ln re Taylor, 64 N. W. Rep. 253 (S Dak.). Like United ."^ tales v. Harmon, 68 Fed. Rep. 472, (noted in 9 Harvard Law- Review, 220,) this case and the authorities collected therein show the unmistakable drift of the courts toward freeing the criminal law from some of the technicalities that serve only to hinder justice. There is no good reason why a man fairly convicted of crime should be released altogether because he receives too heavy a sentence, when there is the alternative of re-sentencing him for the proper term. The weight of authority, composed largely of very recent decisions, is now with the principal case, the growth of opinion in the U. S. Supreme Court being clearly traceable from the strong contrary dictum in In re Graham, 138 U. S. 461, through Le Bonner, 151 U. S. 242, to the opposite decision in U. S. v. Pridgeon^ 153 U. S. 48. Criminal Procedure — Irregular Verdict — Double Jeopardy. — Defendant was indicted for grand larceny, and when the jury retired they were told to send for the judge if they arrived at a verdict during the recess of the court. Instead of doing this, the jury, when they reached a decision, sealed their verdict, gave it to the clerk of the court, and separated. When the court reconvened, the judge assembled the jury in their box, opened and read the verdict in their presence and hearing. On exception to the court's refusal to discharge the defendant for this irregularity an appeal was taken. Held, that the writing delivered to the clerk in the absence of judge and defendant was no verdict, and its acceptance by the judge followed by an unauthorized discharge of the jury was equivalent to an acquittal of the defendant, who could not be placed in jeopardy a second time. Hayes v. State, 18 Ho. Rep, 172 (Fla.). 1 1 is well settled that the discharge of a jury, except in case of necessity, when the indictment is valid and ihe defendant objects, bars any further trial. But the weight of authority seems also to hold that a verdict rendered in the absence of the prisoner, while entitling him to a new trial, does not discharge him. State v. Hughes, 2 Ala. 102 ; A'ose v. S/ate, 20 Ohio St. 3 1 ; People v. Perkins, i Wend. 91 ; Sneedv. State, 5 Ark. 431. If the above decision is right, it must be on the narrowground that, because the jury were not expressly authorized to deliver a sealed verdict, their written decision was absolutely void, and the judge's failure to poll them af ter ards lef t the case with- out a verdict from them, though thsy expressed no dissent when their written opinion was read in open court. In Nomaque v. People, i Breese, 145, 12 Am. Dec. 157, a similar point was decided differently. Equity — Mortgage of Future Crops. — A lease of farm lands contained a proviso that the property in the crop should be in the lessor until a portion of it had been paid in as rent, and until the farm hands were paid. Before the crop was sown, it was mortgaged to defendant ; when grown, it was put in possession of plaintiff, an unpaid farm hand, who was to satisfy his lien, pay the rent, and return the surplus to the lessee. In an action of trover, heldiox defendant. L-aivreuce v. Phy, 41 Pac. Rep. 671 (Or.). A clear case of a prior mortgage being preferred to a later lien, even though the