185 F. 73 | 8th Cir. | 1911
In this case one Johnson R. Morris was indicted for violating the statutes of the United States relative to the manufacture and sale of oleomargarine. The indict.ment contained ten counts. Upon the trial defendant was found guilty upon each count, excepting the fourth, seventh, and ninth. On June 5, 1907, he was sentenced by the trial court on each of the counts numbered 1, 2, 3, 5, and 6, to pay a fine of $1,000. On the eighth count he was sentenced to pay a fine of $1,000 and the costs of prosecution, and to be imprisoned in the United States penitentiary at Ft. Leavenworth for the term of 2 years. On the tenth count he was sentenced to pay a fine of $100 and be imprisoned in the St. Louis city jail during the term of 24 hours. From the judgment thus imposed he prosecuted his writ of error to this court, and gave a supersedeas bond in the usual form.
Upon the hearing in this court the judgment was affirmed. 161 Fed. 672, 88 C. C. A. 532. An application for rehearing was made and granted so far as the judgment related to the eighth count only. Upon such rehearing the judgment as to the eighth count was reversed, and the cause remanded to the District Court, with directions to sustain the motion in arrest of judgment as to the eighth count. 168
Subsequently, at a sitting of the District Court on July 15th, the court entered a judgment, expunging from the record the filing of the mandate by 'the clerk of June 7, 1909, and ordered that the mandate be filed as of July 15, 1909. The District Court further ordered that the motion in arrest of judgment, so far as the same related to the eighth count of the indictment, be sustained, and that, as to said count, the defendant go hence without day. The court further ordered that the defendant surrender himself to the custody of the marshal for the •'Eastern district of Missouri, in execution of the judgment and sentence imposed upon him, within 30 days from and after that date, and directed that the marshal deliver defendant to the jailer ,of St. Louis city jail, together with a duly certified copy of the judgment theretofore entered in the cause, so far as the same related to the tenth count of the indictment. The court further ordered that the United States have execution, after 30 days, for the amount of the fines imposed by that court and affirmed by this court, under the first, second, third, fifth, sixth, and tenth counts of.the indictment, and for the costs of prosecution.
The defendant, Morris, filed a motion to vacate such order and judgment, and also to have the judgment of imprisonment under the tenth count entered as satisfied. These motions were each overruled. To review the action of the court of July 15th, defendant has brought the action to this court.
The law is fundamental, and no authorities need be cited in support thereof, that the trial court can enter no other or different judgment than is directed by the mandate from the appellate court. The mandate from this court was an affirmance of the judgment entered on June 5, 1907, except as to the eighth count. As to that count it directed that the motion in arrest of judgment should be sustained. The order of affirmance as to the judgment upon the other counts
The offer to surrender to the marshal on the 7th of July was such a- sufficient compliance with the order of this court as to release his bondsmen from liability; but the judgment of the court was that he be confined in the jail at St. Louis for 24 hours. He never was committed to the jail, never did undergo imprisonment in accordance with the judgment, and hence he was not entitled to have the judgment of imprisonment satisfied.
For the foregoing reasons, the judgment of July 15, 1909, is reversed, excepting the portion thereof sustaining the motion in arrest of judgment as to the eighth count, and. the portion overruling defendant’s motion to have the judgment of imprisonment under the tenth count satisfied; neither party to recover costs.