Lead Opinion
Pending an appeal from a judgment of conviction in the Southern District of California, Lyman, appellee, was convicted of another crime in the Southern district of New York, and cоmmitted to the United States penitentiary at Atlanta. The judgment of the California court was affirmed (Lyman v. United States,
It is argued that it was manifest that the Cаlifornia court intended that the punishment should begin after the expiration of the term imposed by the New York court. This nowhere appears. ' It is true that, if the original order of imprisonment in the state penitentiary at San Quentin had not been changed, the imprisonment could not have begun until the prisoner had been released from the Atlanta penitentiary. But there is nothing to indicate that the court intended to do anything other than that which was done.
It is suggested that if the Attorney General had not designated the Atlanta penitentiary as the place of confinement, and the District .Court for the Southern District of California had caused a commit-, ment to issue upon the original order, the appellee would have been compelled to- serve both sentences fully. If the сommitment had been different,- and the facts differeñt, doubtless a different conclusion would be reached. That which the court is called upon to do- is to pass, upon the record as it stands. The California court either knew that Dyman was in the custody of the warden of the Atlanta penitentiary, or did not know of that fact. If it had knowledge of the fact, the commitment which it cаused to be,issued would evidence an intention that
The appellant suggests that error was committed in not permitting the California court to amend its judgment. The record contains nothing to indicate that the trial court had any desire to make any amendment, or that it in any sense recognized or assumed that any error had been committed.
The applicant has not, as suggestеd by the appellant, escaped punishment because of the technical error. There is nothing to indicate that an error has been committed, and the record shows that thе prisoner was held under the sentence for the period designated hy the judgment.
The judgment of the lower court is affirmed.
Dissenting Opinion
(dissenting). It is quite apparent that the above-mentioned commitment order made by the District Court for the Southern District of California was not intended to change in any respect its previously rendered and affirmed judgment. In specifying the place of imprisonment, there was a compliance with the direction of the Attorney General. The extent of the authority conferred on the Attorney General by the statute under which he acted (10 U. S. Comp. St. Ann. § 10547) is to have the place of imрrisonment changed. He is not empowered to make the period of imprisonment different from what it would have been if the place of imprisonment designated in the judgment of the court had remained unchanged. His exercise of the power conferred is not to be given the effect of accomplishing an unauthorized result. There is nothing to indicate that the above-mentioned letter of the Attorney General, or the commitment order made in pursuance of it, purported or was intended to have the effect given to it by the order appealed from. If the change of the place of confinement of the convict had not been so made, his confinement in the San Quentin penitentiary coixld not have commenced until he was released from confinement in the Atlanta penitentiary under the TSiew York conviction.
Under the facts of the instant case, there is nothing upon which to base the cоnclusion that the sentence on the conviction in California was imposed under such circumstances as to make it run concurrently with any other sentence. So far as appears," at the time that sentence was imposed, the convict was not the subject of any other sentence, imposed by that or any other court. As above slated, the commitment order made hy the California trial court does not purport to make any change in its judgment rendered at a previous term and thereafter affirmed. To give that order, the writ issued under it, and the written statement made hy the warden on his receipt of the commitment writ, the effect of making the period of the convict’s confinement shorter than it would have been if the place of confinement had not been changed, would amount to making a change in the effect and operation of the affirmed judgment which was not authorized, and whicli does not aрpear to have been intended by either the Attorney
Under the circumstances of the issue of the California commitment writ and the recеipt of it by the warden, the latter was thereby authorized, upon the expiration of the period of the convict’s imprisonment under the New York sentence, to retain him in custody for the рeriod required by the California sentence. The marshal did not execute the writ by arresting Lyman and delivering him to the warden. The convict was already in the warden’s custody, held under another unexpired sentence. In the opinion of the writer, what was done did not have the effect of making the convict’s confinement in the Atlanta penitentiary under the California sentencе commence sooner than it could have commenced if the place of his confinement had not been changed. The application of the conclusion just statеd to the facts disclosed leads to the further conclusion that when the writ of habeas corpus was issued, and when the order appealed from was made, the appelleе was not entitled to be discharged from custody, because the period of his imprisonment under the California sentence had not expired; and that the court erred in ordering his discharge.