117 F. 763 | D. Mo. | 1902
A writ of habeas corpus was issued by me on August 25, 1902, upon a petition filed by Ben H. Morse, a convict in the Missouri State Penitentiary, wherein he alleged, in substance, that he was wrongfully restrained of his liberty by F. M. Wooldridge, the warden of said penitentiary, because the term of imprisonment which was fixed in the sentence by which he was committed to that institution had expired on August 3, 1902. On the day appointed for the return of the writ, to wit, September 13, 1902, the warden filed a return, and the petitioner has demurred to it, admitting all the facts stated therein, but contesting their legal sufficiency to justify his further detention. The facts so admitted are the following: On May 3, 1900, Morse was tried in the United States district court for the Western division of the Western judicial district of Missouri upon an indictment charging him with having unlawfully devised a scheme and artifice to defraud by means of the use of the post-office establishment of the United States. He was convicted of the offense by the verdict of a jury, and was thereupon, on May 4, 1900, sentenced to pay a fine of $1 and “be imprisoned for the period of eighteen months from this date in the Missouri State Penitentiary.” On May 4, 1900, Morse was tried before the same court upon another and distinct charge or indictment for having devised a scheme and artifice to defraud by the use of the post-office establishment, and on that day was convicted by the verdict of a jury, and sentenced, as in the other case, to pay a fine of $1, together with the costs, and “be imprisoned for the period of eighteen months from this date in the Missouri State Penitentiary.” It was stated, however, in the latter sentence, that said imprisonment should “begin at the expiration of the sentence in case No. 2,200.” Case No. 2,200, thus referred to, was the first of the two cases mentioned above; the last case to which reference is made being case No. 2,199. Immediately after his conviction, the district court fixed the amount of his bond for an appeal at the sum of $2,000 in each case. Subsequently the petitioner gave such a bond in each case, and was released to
The petitioner bases his claim for a discharge upon the ground that, because the judgment rendered by the district court in each of the cases, 2,200 and 2,199, specifically declared that he should “be imprisoned for the period of eighteen months from this date,” his term of imprisonment must perforce be computed from May 4, 1900, when the judgments were rendered, without reference to. the fact that he was immediately released on bond during the pendency of a writ of error, and was not in fact committed to prison in execution of the sentences until April 29, 1901. It is said that, in order to make the imprisonment begin on a date subsequent to'May 4, 1900, to wit, April 29, 1901, as the government insists that it shall begin, it was necessary to have brought the petitioner into, court on the filing of the mandate of the court of appeals and to have resentenced him. It will be conceded that, if this theory is correct, ,and that the term of imprisonment must be computed from May 4, 1900, then the petitioner’s term of imprisonment, by reason of the allowance of nine months’ time for good behavior, has expired, and he is entitled to his discharge. I am persuaded, however, that the proposition urged in behalf of the petitioner is untenable, and that the term of his imprisonment must be computed from the time it actually began; that is to say, from April 29, 1901. When a sentence of imprisonment is imposed in a criminal case, it is unnecessary, if not improper, to state in the sentence when the term of imprisonment shall begin, because whatever directions may be given on this point by the trial court cannot control the right which is usually accorded to a prisoner by statute to suspend the execution of the sentence by a bond during the" pendency of an appeal or writ of error. When a clause fixing the time when imprisonment shall begin is inserted in a sentence,— as it sometimes is,—it must be understood to be in its nature directory, or as fixing a time when it shall begin, provided the prisoner treats the judgment as final, and does not avail himself of his statutory right to suspend the execution of the sentence by giving bond
In conformity with these views, I have reached the conclusion that on the filing of the mandate of the court of appeals in the district court it was wholly unnecessary to have resentenced the prisoner, fixing a new date for the term of imprisonment to begin. The writ of error which was sued out did not affect the judgment below, but merely suspended the execution of the sentence until the case was heard and decided on appeal. It was never so heard, because prior to the hearing the accused dismissed the writ of error, whereupon the appellate court ordered that he surrender himself to the marshal “in execution of the sentence heretofore imposed,” which was a sentence aggregating three years, no part of which had at that time been executed. This was a direction, in effect, that he be thereafter imprisoned for the term of 18 months from the date of his actual incarceration, which was the sentence imposed in case No. 2,200, and that he also be, imprisoned for the term of 18 months, which was the sentence imposed in case No. 2,199; the latter term' of imprisonment to begin at “the expiration of the sentence in case No. 2,200.”
In accordance with this view, it is now ordered that the writ of habeas corpus heretofore issued be discharged, at the cost of the petitioner, and that he remain in the custody of the warden.
. See Criminal Law, vol. 15, Cent. Dig. §§ 2521, 3312.