75 F. 986 | 6th Cir. | 1896
Eight indictments were returned against petitioner, Howard, in the district court of the United States for the Eastern division of the Western district of Tennessee, charging him with violations of section 5480 of the Revised Statutes of the United Slates in the use of the post-office establishment of the United States in the execution of schemes to defraud. The docket numbers of the cases were 1,727,1,728,1,729,1,730,1,731, 1,732,1,758, and 1,759, respectively. These cases were, by order of the court, consolidated, and tried at the came time before the same jury. The trial resulted in a verdict of guilty on each of the indictments, and judgment and sentence were pronounced against the petitioner in each of the cases. The sentence in the first case was to 18 months’ imprisonment in the Ohio penitentiary and a fine of $500, and, in each of the seven cases following, 13 months’ imprisonment and a fine of $100 were imposed, the same to be applied to the indictments in their numerical order. The sentence in the second and each following case took effect at the expiration of the one next preceding. Mittimus issued, regular in form, under each, judgment and sentence, directed to the marshal of the Western district of Tennessee, and commanding liim to commit the petitioner. Howard, to the Ohio penitentiary at Columbus, in the state of Ohio, to he there imprisoned for the terms fixed in the eight sentences!. The defendant was ordered to stand committed until the several fines imposed and (he costs of the prosecution were paid. When the defendant had served out the term of imprisonment imposed by the first sentence (the statutory deduction for good time being made), application was made to the circuit court of the United states for the Eastern division of the Southern district of Ohio for a writ of habeas corpus. The petition for the writ alleged as grounds for the prisoner's discharge from custody:
(1) That cumulative sentence!;, as imposed by tbe court, were without authority of law and without power in the court. (2) That the sentences, except the first, were too uncertain and indefinite, in that they were made each to take effect upon the expiration of the preceding sentence, which itself was made uncertain, because llie question of allowing credit for good time under the siatute was discretionary, and not absolute. (B) That the consolidation of the indictments against the prisoner, and his trial on all of them at the same time, ivas a proceeding unauthorized by law, and the sentences for that reason void.
Due return was made to the writ, with the answer of the warden of the penitentiary. The writ was discharged upon the trial, the petition dismissed, and the petitioner, Howard, remanded to the custody of the warden of the Ohio penitentiary to coinjdete his terms of imprisonment, in accordance with the sentences of the United. States district court for the Western district of Tennessee. On appeal to this court, the judgment of (he court below was affirmed; whereupon
“This cause coming on to be heard on the petition of G. E\ B. Howard for a writ of habeas corpus, upon consideration, the court finds that the petition shows the prisoner to be in lawful custody, and does not state a case for the issuance of a writ. Wherefore it is ordered that the petition be denied, at the costs of the petitioner. Whereupon the petitioner applies to the court for an allowance of an appeal to the circuit court of appeals for the Sixth circuit from the order denying the petition, which appeal is accordingly allowed, and the clerk is directed to issue a citation upon such appeal to the United States attorney for the Southern district of Ohio, as the representatiye of the United States, who will be the appellee in the proceedings on appeal in the circuit court of appeals.”
It will be seen that the judgment is based on the petition alone and what appears therefrom. The objection based on the omission in the mittimus in 1,728 will be disposed of first.
“Whenever a prisoner is committed to a sheriff or jailer by virtue of a writ, warrant or mittimus, a copy thereof shall be delivered to such sheriff or jailer, as his authority to hold the prisoner, and the original writ, warrant or mittimus shall he returned to the proper court or officer, with the officer’s return thereon.”
The contention is that under this statute the copy of the mittimus furnished by the marshal to the warden of the penitentiary is made the warden’s only authority for detention of the prisoner, and that, the copy in possession of the warden being void on account of the defect mentioned herein, the prisoner’s restraint is unlawful. Omitting the direction and proper teste of the mittimus, the body thereof is as follows:
“You axe hereby commanded to commit the defendant, Joseph Leger, alias G. F. B. Howard, to the Ohio penitentiary at Columbus, Ohio, there to be imprisoned for the term of thirteen months, the expiration of his term of imprisonment under indictment No. 1,727, in accordance with a sentence of this court pronounced against said defendant on this the 4th day of January, 1894, for the crime of violating the laws of the United States in unlawfully using the mails with intent to defraud.”
This contention does not require extended treatment. The warrant or order of commitment is simply an authority and direction to the marshal to take the prisoner to the penitentiary named. The copy furnished by the marshal or clerk to the warden is merely evidence, and evidence only, of the judgment and sentence of the court and the mittimus issued thereunder. The statute makes this evidence of a regular court judgment and mittimus sufficient authority and protection to the warden, and the warden is not required to go beyond this copy in satisfying himself of the existence of a valid sentence against the prisoner. This is the purpose and effect of the copy, and nothing more. The prisoner is not committed by virtue of the copy, hut by virtue of the judgment of the court, and the mittimus issued pursuant thereto; the real valid authority under which the mittimus is issued being the sentence of the court
In People v. Baker, 89 N. Y. 461, Earl, J., said:
“But tbe relator was not detained, or required to be detained, by virtue of any warrant. He was detained by virtue of the judgment of the court, and that judgment was a sufficient authority for his detention. The warrant of commitment is simply an authority and direction to the sheriff or other officer to convey the prisoner to the penitentiary. That needs not necessarily to be left with the keeper. If he has no other evidence of his authority to detain the prisoner, he should have that. But, if the officer who brings a prisoner to the penitentiary furnished the keeper with a certified copy of the judgment of the court, then that is sufficient evidence of the keeper’s authority, and he needs to have no other. A prisoner who has been properly and legally sentenced to prison cannot be released simply because there is an imperfection in what is commonly called the ‘mittimus.’ A proper mittimus can, if needed, be supplied at any time; and, if the prisoner is safely in the proper custody, there is no office for a mittimus to perform.”
This ruling is supported by the previous case of People v. Nevins, 1 Hill, 154, followed and approved by the supreme court of the United States in Ex parte Wilson, 114 U. S. 422, 5 Sup. Ct. 935.
And so in Sennott v. Swan (Mass.) 16 N. E. 448, Knowlton, J., giv
“Besides, we have the judgment before us. The imprisonment rests upon the judgment, and the mittimus is important only as a direction to the officer, and as evidence of the authority which the judgment gives. People v. Baker, 89 N. Y. 460. See, also, Ex parte Gibson, 31 Cal. 620; Ex parte Kellogg, 6 Vt. 511.”
Moreover, as will be seen, the copy of the mittimus under 1,728, attached to the petition, refers to the sentence on indictment No. 1,727, and to the sentence of the court pronounced in No. 1,728, giving the character of the crime. The judgment of the court is not only thus referred to, but, as we have seen, a copy of the transcript of the judgment is attached to the petition, and made a part thereof. The judgment appears from this transcript to be regular in all respects, and makes the period of imprisonment, as well as the time of its commencement, clear, and shows that the sentence of the court contains no such defect or omission as that pointed out in the copy exhibited with the petition; and that the omission in the copy furnished by the marshal to the warden is a mere clerical error by the marshal or clerk in making such copy. For each and all of these reasons, we are of opinon that the defect pointed out in the petition furnishes no ground whateyer for the writ, and is entirely without merit. A petition which does not impeach the judgment or original mittimus, directed to the marshal, under which petitioner was actually committed, states no case for the writ. On the trial of the first petition, a full transcript of the record in the court of original jurisdiction was introduced, and was on file in the court below at the time of the judgment on the second petition, and a copy is also on file in this court. From this it fully appears that the original sentences and the original mittimuses issued thereunder are in all respects regular; and it is argued that the court below might look to that transcript, and that, in support of the judgment below, this court may also inspect the transcript on file in this court. The disposition thus made of the objection, based on the defective copy, renders it unnecessary to decide this point. As has been seen, the action of the court below was based upon the petition alone and the papers attached thereto; and, in reviewing the judgment of the court below, we do not think we are at liberty to dispose of the case on matter appearing in a record different from that on which the judgment below was based.
This brings us to the question of the right and power of the court to impose cumulative and successive sentences. This question may arise in a given case upon a conviction on different counts in the same indictment charging distinct offenses, or upon conviction at the same term on separate indictments for distinct offenses. The principle involved is, however, the same as the right to join distinct offenses in different counts in the same indictment is to avoid, to both parties, the burden and expense of two or more separate trials. If this question depended upon the law of the state where the petitioner was tided, there is a statute expressly authorizing cumulative sentences. Code Tenn. § 5228; Mitchell v. State, 92 Tenn. 672, 23 S. W. 68. In the absence of an act of congress upon the subject, how
In Blitz v. U. S., the defendant was convicted on an indictment containing three separate counts, in which he was charged, in the first count, with personating and voting in the name of another; in the second, with voting at a precinct where he was not lawfully entitled to vote; and, in the third, with voting for the same candidate more than once; and a verdict of guilty was returned upon each count of the indictment. A motion in arrest of judgment was sustained its to the second count of the indictment, and overruled as to the first and third counts, and the defendant was sentenced on the first count to imprisonment in the penitentiary for one year and a day, and on the third count for a like period, beginning upon the expiration of the sentence on the first count. The supreme court of the United States held that the motion in arrest of judgment should have been sustained also as to the first count in the indictment, and affirmed the judgment as to the third count, and directed that the term of imprisonment under tin; third count should be held to commence on the day named for the commencement of the first term. As judgment: was pronounced on both the first and third counts in the court below, the imprisonment under the third count commenced upon the expiration of the judgment on the first count. The contention of the plaintiff in error was that the cause should be remanded, with directions for a new trial. In answer-inn this question, Mr. Justice Harlan, giving the opinion of the court, said:
*‘Tn Kite v. Com., 11 Metc. (Mass.) 581, 585, it appeared that the accused was sentenced for a named period to confinement at hard labor, to take effect from and after the expiration of three previous sentences specified. The judgment was objected to as erroneous and void, because there were not throe former sentences, legal and valid, a.nd therefore no fixed time from wliich tlie punishment on the last sentence should begin. Chief Justice Shaw, referring to this objection, and delivering the unanimous judgment of the court, said that it was not error in a judgment in a criminal case to make one term of imprisonment commence when another terminates. ‘It is as certain,’ he said, ‘as the nature of the case will admit, and there is no other mode in which a party may be sentenced on several convictions. Though uncertain at the time, depending upon a. possible contingency that the imprisonment on the former sentence will be remitted or shortened, it will be made certain by the event. If the previous sentence is shortened by a reversal of the judgment or a. pardon, it then expires; and then, by its terms, the sentence in question takes effect as if the previous one had expired by lapse of time. Nor will it make any difference that tlie previous judgment is reversed for error. It is voidable only, not void; and, until reversed by a judgment, it is to be deemed of full force and effect; and, though erroneous and subsequently reversed on error, it is quite sufficient to fix the term at wliich another sentence shall take effect.’ See, also, Dolan’s Case, 101 Mass. 219, 222. In these views we concur.”
And in Williams v. State, 18 Ohio St. 47, the supreme court of Ohio said:
“To bold that, where there are two convictions and judgments of imprisonment at the same term, both must commence immediately, and be executed concurrently, would clearly be to nullify one of them. To postpone the judgment in one case until the termination of the sentence in the other would, if allowable, be attended with obvious inconvenience and expense, without any correspondent benefit to the convict. There is nothing in the statute requiring this, and it is not to be construed so as to defeat or impede the execution of its own provisions as to the punishment of crimes. We think, both upon principle and the weight of authority, that we are required to hold that it is not error, upon a conviction in a criminal case, to make one term of imprisonment commence when another terminates. There is but little force in the objection that the term of the commencement of the second term is contingent and uncertain. It is true that the first term may be ended by a pardon or a reversal of judgment, but its termination will be rendered certain by the event, and then the second sentence, by its terms, takes effect.”
And the supreme court of Nebraska, answering a similar objection, and referring to certain cases cited as supporting the objection, thus expressed its view:
“But, in our opinion, the great weight of authority is in favor of the -proposition that upon conviction of several offenses charged in separate indictments, or in separate counts of the same indictment, the .court has power to impose cumulative sentences. See Whart. Cr. Pl. § 910; Bish. Cr. Law, § 953; Kite v. Com., 11 Metc. (Mass.) 581; Mims v. State, 26 Minn. 498, 5 N. W. 374; State v. Smith, 5 Day, 175; Petition of McCormick, 24 Wis. 492; In re Fry, 3 Mackey, 135; Ex parte Hibbs, 26 Fed. 421; State v. Robinson, 40 La. Ann. 730, 5 South. 20; Parker v. People (Colo. Sup.) 21 Pac. 1120; Russel v. Com., 7 Serg. & R. 489; Williams v. State, 18 Ohio St. 46; Eldredge v. State, 37 Ohio St. 191; Bolun v. People, 73 Ill. 488.” In re Walsh, 55 N. W. 1076.
It is time that cases are to be found holding a contrary doctrine. How far the decisions in such cases may have been influenced by legislation in the particular state we need not now stop to inquire. It is certain that such cases find little or no support in the common law, and certainly none in sound reason. The cases are practically agreed that separate offenses may be included in separate counts of the same indictment. Ingraham v. U. S., 155 U. S, 434, 15 Sup. Ct. 148; Pointer v. U. S., 151 U. S. 396, 14 Sup. Ct. 410.
It is also a recognized method of procedure to consolidate separate indictments and try them at the same time as one case; and
Counsel for the petitioner relies with much confidence on People ex rel. Tweed v. Liscomb (Tweed’s Case) 60 N. Y. 559, and authorities cited therein. The doctrine of this case, however, has met with universal disapproval. Mr. Bishop speaks of it as “a doctrine elsewhere never heard of before, and generally rejected since.” And in a note the author further says:
“On the other hand, I have looked into nil the eases cited from the books of reports in Tweed’s Case, and into such others a,s seemed to afford any promise of instruction, and. I find no one, English or American, ancient or modern, which furnishes a precedent, or an authority, or even a dictum, for the conclusion arrived at by the court.” Bish. Or. Proc. § 1327.
And Hie supreme court of Colorado, in Parker v. People, 13 Colo. 155, 21 Pac. 1120, said:
“The doctrine announced in the Tweed Case has called for the severest criticism of our ablest criminal law writers, and is contrary to tile weight of authority both in England and in this country.”
The Tlehborne Case was one much considered by the English courts. The writ of error in the case was allowed by the attorney general out of respect to the ruling by the Yew York court in Tweed’s Case. The case went first before the court of appeals, and on further appeal before the house of lords. The question of the soundness of the decision in Tweed's Case was therefore directly before the English courts. The decision was regarded by those courts as somewhat startling, and it was said, in effect, that, while the case might be good as American authority, the law of England was certainly otherwise. The English judges seem to have considered Tweed’s Case only, and not to have been aware at that time that the weight of American authority was also against the ruling in that case.
We think the power thus to pronounce cumulative sentences exists in regard to felonies, as well as misdemeanors, although in the case at. bar we are dealing with the misdemeanor grade of offense onlv. Reagan v. U. S., 157 U. S. 303, 15 Sup. Ct. 610; Bannon v. U. S., 156 U. S. 464, 15 Sup. Ct. 467.
We now come to the question of whether all of the sentences except the first were void for uncertainty. So far as this objection may be rested upon the ground that the second and subsequent sentences do not fix the date of commencement more definitely than as
“The first question is whether this act gives a right to the convict to have his term of imprisonment reduced and shortened by such a scale; or. in other words, whether these provisions of law bear upon the sentence, and shorten the term of imprisonment. We think they do. They afford an assurance of the highest character that, upon condition of good behavior, the convict shall have the promised benefit of an earlier release. We are aware that the words are not explicit that the term of imprisonment shall be reduced, but.we think they are equivalent. The words are, ‘There shall be a scale of .deduction from the term of such eonviefis sentence.’ It appears to be equivalent to an express provision that there shall be a deduction from the term of imprisonment, according to the scale so to be formed. According to this construction, the sentence, which is imposed by force of the law, is modified by the present law; so that, prior to the present, the time of imprisonment would be computed according to the words of the sentence, and be discharged at its termination by lapse of time. Under the present, it will terminate by the time declared in the terms of the sentence, diminished by the number of days for which the convict will be entitled to deduction. Such a deduction, especially in the case of long sentences, when it is one-sixth part of the whole, becomes an essential legal element in the sentence itself, by which the convict ,is held; and the convict, by complying with the terms of the law in maintaining his gdod conduct, thereby earns a right to the promised benefit. If it be objected that this will render the subsistence of the sentences uncertain, we think not, if the provisions of the act are rightly understood and observed. The scale of deduction is-not to depend on'any varying or capricious notions .which'any officers or superintendents of the prison may entertain of the good behavior or good disposition of a convict. It is made to depend upon a fact ascertained by a fixed rule, entered on the journals of the prison, recorded each month; that is, entered in a book permanent in its character, fixed and*995 unchangeable when once entered. These hooks of record are always accessible, and, although the officers may all change, the record is there.” 13 Gray, 619 (Supp.).
And in Ee Walsh, supra, the supreme court of Nebraska said;
•‘This court lias held that, where a person lias been convicted of several distinct misdemeanors, it in proper for the court to impose a separate sentence upon each offense oí which the defendant: is found guilty (Burrell v. State, 25 Neb. 581, 41 N. W. 399); and we know of no reason why the same rule should not apply in convictions for felonies. Where a cumulative sentence is imposed in case a person is convicted of several distinct offenses, the judgment should not fix the day on which each successive term of imprisonment should commence, but. should direct: that each successive term should begin at the expiration of the previous one (Johnson v. People, 83 Ill. 431); and this for the obvious reason that 1he prior term of imprisonment may he shortened by the good behavior of the defendant, by executive clemency, or by a reversal ol‘ the judgment, in which event the succeeding sentence would ■then take effect, in case it provided that the term of imprisonment should commence at the termination of the previous one.”
If tlie prisoner’s argument were good, it would result that a statute enacted from motives of kindness to him would have the practical effect, to a very large extent, of defeating the administration of the criminal law. The courts must not be expected, upon suggestion of merely speculative difficulties, to announce a rule which would lead to such surprising results as this. Bo, without further observations upon this branch of the case, we pass to the contention made upon the last clause of section 5480 of the Ee vised Statutes, upon which the indictments in this case are predicated. The clause is in this language:
•‘The indictment, information or complaint may severally charge offenses to the number of three, when committed within the same six calendar months; but the court thereupon shall give a single «silence, and shall proportion the punishment especially to the degree in which the abuse of tlie postoffice establishment enters as an instrument into such fraudulent scheme and device.”
The prisoner’s argument is that as only three separate offenses may be included in one indictment within the same six calendar months, and in case of conviction only one sentence, the consolida,tion of the eight indictments had the effect to make hut one case, and in effect one indictment, and 1hat the court could, under this provision of the act, pronounce but one sentence upon a conviction in Ihe consolidated cases, and that all of the sentences except the first are therefore absolutely void. The petition, with the papers attached thereto, does not state or suggest that any such question was made or decided by the court of original jurisdiction in which the cases were tried and the sentences pronounced. Tire objection seems not to have been taken by motion to quash, to compel an election, by plea, request for instruction, or otherwise; and the question is apparently attempted to he raised for the first time in this collateral proceeding. It is well settled that the writ of habeas corpus cannot foe made to perform the office of a writ of error, and that the inquiry in such proceeding is not whether there is error in the proceeding and judgment, but whether the judgment is a nullity. It would seem that, in any view of this question, the court has jurisdiction to pronounce such sentence as the law authorized; and, if the
In Ex parte Bibbs, 26 Fed. 427, the court observed:
“The act authorizing the joinder oí offenses in one indictment, and a consolidation of separate, indictments for distinct offenses, was intended to promote the speedy and economical administration of justice in such cases, in the interest both of the government and the offender, and not practically to merge two or more distinct offenses into one for the benefit of the latter.”
See, also, In re Haynes, 30 Fed. 771; Bish. Cr. Proc. (4th Ed.) §§ 421, 1042, 1045; Parker v. People, 13 Colo. 155, 21 Pac. 1120; Williams v. State, 18 Ohio St. 47.
Indeed, it would seem to require no reasoning to show that if joining separate offenses in the same indictment does not make them one offense, so as to require but one sentence, a fortiori a consolidation, for the purpose of trial, of separate indictments charging distinct offenses, would not have this effect. So, the very basis on which the petitioner’s contention in this respect rests falls to the ground. If petitioner’s counsel means by the argument to insist that there can be but one punishment for .all offenses committed by a person under this statute within one period of six calendar months, the reply is that it was otherwise held in Re Henry, 123 U. S. 374, 8 Sup. Ct. 142. In that case the court said:
“We have carefully considered the argument submitted by counsel in behalf of the petitioner, but are unable to agree with him in opinion that there can be but one punishment for all the offenses committed by a person under this statute within any one period of six calendar months. As was well said by the district judge on the trial of the indictment: ‘The act forbids, not the general use of the post office for the purpose of carrying out a fraudulent scheme or device, but the putting in the post office of a letter or packet, ox-the taking out of a letter or packet from the post office, in furtherance of such a scheme. Each letter so taken out or put in constitutes a separate and distinct violation of the act.’ It is not, as in the case of In re Snow, 120 U. S. 274, 7 Sup. Ct. 556, a continuous offense, but it consists of a single isolated act, and is repeated as often as the act is repeated. It is, indeed, provided that three distinct offenses, committed within the same six months, may be-joined in the same indictment; but this is no more than allowing the joinder of three offenses for the purpose of a trial. In its general effect this provision is not materially different from that of section 1024 of the Revised Statutes, which allows the joinder in one indictment of charges against a person ‘for two or more acts or transactions of the same class of crimes or offenses,’ and tbe consolidation of two or more indictments found in such cases. Under the present statute, three separate offenses, committed in the same six months, may be joined, but not more, arid, when joined, there is. to be a single sentence for all. That is the whole scope and meaning of the pi’ovision, and there is nothing whatever in it to indicate an intention to make a single continuous offense, and punishable only as such, out of what, without it, would have been several distinct offenses, each complete in itself.”
See, also, Durland v. B. S., 161 U. S. 315, 16 Sup. Ct. 508.
Another and the last objection to be noticed is to the action of the court in the order consolidating the indictments. We think it is clear that this inquiry is addressed to a question of error in the proceeding and judgment, and not to the question whether the judgment and sentence are void, as without jurisdiction and authority. Ex parte Parks, 93 U. S. 18; U. S. v. Pridgeon, 153 U. S. 48, 14 Sup. Ct. 746; Ornelas v. Ruiz, 161 U. S. 502, 16 Sup. Ct. 689; In re Frederick, 149 U. S. 70, 13 Sup. Ct. 793; Bish. Cr. Proc. § 1410. This question could be re-examined only on writ of error, and in that mode onlv after exception dulv taken and reserved in the court below. Bucklin v. U. S., 159 U. S. 685, 16 Sup. Ct. 182; Logan v. U. S., 144 U. S. 263, 12 Sup. Ct. 617.
We conclude, therefore, that there was no error in the judgment of the court below denying the writ, and the same is accordingly affirmed.
NOTE. In addition to the authorities referred 1o in the opinion, the following may he consulted with advantage, as hearing' upon the different points considered and decided: U. S. v. Blaisdell, 3 Ben. 132, Fed. Cas. No. 14,608; Ex parte Peters, 4 Dill. 109, Fed. Cas. No. 11,027; Ex parte Shaffenburg, 4 Did. 271, Fed. Cas. No. 12,696: Ex parte Peters. 12 Fed. 461; Wiborg v. U. S., 163 U. S. 632, 16 Sup. Ct. 1127.
