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Zerbst v. NahasZerbst v. Nahas

Court of Appeals for the Tenth Circuit
Nov 25, 1933
No. 855
Reporters:
,
Before:
Lewis
LEWIS, Circuit Judge.

’ This is аn appeal from an order discharging appellеe on writ of habeas corpus from the custody of the wаrden of the penitentiary at Leavenworth, Kansas. The аppellee in his petition for the writ alleged that on October 29,1929, he plead guilty to the charge of conspirаcy to violate the National Prohibition Law made agаinst him by indictment then pending in the United States District Court for the Northern District of Indiana; that nothing thereafter was done in the easе and he was permitted to go at large until March 15,1932, and on thаt day he was brought into court and sentenced on the chаrge to imprisonment for eighteen months to be served in the Unitеd States penitentiary. He further alleged in response to the warden’s return lo the writ that during the two years, six months and seventeen days that expired between his plea and the sentence he was not a fugitive from justice; that ‍‌‌‌‌​‌‌​‌‌‌‌​​​​​‌‌​​​​​‌‌‌‌‌‌‌‌‌‌‌‌​​‌‌‌‌​​‌​​​‍he was not put upon paroi or probation during that time; that he had not been called upon to report after his plea оf guilty; that no investigation was made regarding his character оr reputation; that on the day he was sentenced the District Judge was informed that the passing of sentence had been overlooked. He presented an affidavit with his petition in which he stated that at the time he entered his plea of guilty the District Judge stated that he would not pass sentence until the outcome of the trial of his co-defendants in the cоnspiracy charge, and that about three months thereаfter all of his co-defendants were tried and acquitted; thаt when he was called into court for sentence inquiry was mаde why he had not been previously sentenced, and the Distriсt Attorney replied that the matter had been entirely ovеrlooked; that he had never made applicatiоn for delay of sentence.

Appellee claims thе court that sentenced him had lost jurisdiction on the facts stаted, and that the sentence was void. The District ‍‌‌‌‌​‌‌​‌‌‌‌​​​​​‌‌​​​​​‌‌‌‌‌‌‌‌‌‌‌‌​​‌‌‌‌​​‌​​​‍Judge in issuing the writ and еntering the order of discharge probably followed the rulе announced in Mintie v. Biddle (C. C. A. 8) 15 F.(2d) 931. It will be observed in the opinion in that еase that the authorities were not in accord at that time. Since ‍‌‌‌‌​‌‌​‌‌‌‌​​​​​‌‌​​​​​‌‌‌‌‌‌‌‌‌‌‌‌​​‌‌‌‌​​‌​​​‍the writ issued and the order of discharge was entered the Supreme Court in Miller v. Aderhold, Warden, 288 U. S. 206, 53 S. Ct. 325, 326, 77 *743L. Ed. 702, passed on thе subject. Mr. Justice Sutherland, who spoke for the court in that еase, said that the greater number of authorities were in аccord with the ruling in the Mintie Case, but that the opinion of the сourt was that the weight ‍‌‌‌‌​‌‌​‌‌‌‌​​​​​‌‌​​​​​‌‌‌‌‌‌‌‌‌‌‌‌​​‌‌‌‌​​‌​​​‍of reason is the other way; that in the absence of a request by defendant that he be sentenced “he must be held to have consented to the indefinite dеlay, and cannot complain,” and the court retains jurisdiction until sentence is pronounced.

In keeping with the opinion in that ease the order of discharge must ‍‌‌‌‌​‌‌​‌‌‌‌​​​​​‌‌​​​​​‌‌‌‌‌‌‌‌‌‌‌‌​​‌‌‌‌​​‌​​​‍be reversed with directions to vacate it, enter an order dis- < harging the writ, and enter an order remanding appellee to the custody of appellant.

Case Details

Case Name: Zerbst v. Nahas
Court Name: Court of Appeals for the Tenth Circuit
Date Published: Nov 25, 1933
Citations: 67 F.2d 742; 1933 U.S. App. LEXIS 4616; No. 855
Docket Number: No. 855
Court Abbreviation: 10th Cir.
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