United States v. Wampler, 17112.

• Decision Date: 24 April 1935
• Docket Number: No. 17112.,17112.
• Citation: 10 F. Supp. 609
• Parties: UNITED STATES v. WAMPLER.
• Court: U.S. District Court — District of Maryland

10 F. Supp. 609

UNITED STATES v. WAMPLER.

No. 17112.

District Court, D. Maryland.

April 24, 1935.

T. Morris Wampler, in pro. per.

CHESNUT, District Judge.

The defendant in this case is now confined in the United States Northeastern Penitentiary at Lewisburg, Pennsylvania, in consequence of a conviction in this court for violation of income tax laws (USCA, title 26, § 2146). The jury found a verdict of guilty under the first and second counts of the indictment and on December 28, 1933, the defendant was sentenced to 18 months in the penitentiary and to pay a fine of $5,000 on each count, the terms of imprisonment to run concurrently and the fines to be cumulative. The commitment issued by the clerk on the same day, in customary form, included the provision with regard to the fine that "he stand committed until payment of said fines and costs, or until discharged by due process of law." The defendant has now filed a petition in proper person, in which he prays that the record and commitment may be corrected nunc pro tunc to conform to the sentence as pronounced by the court, by striking therefrom the above quoted provision with regard to the fine. The point is made that the sentence orally rendered in court did not expressly direct that the defendant should stand committed until the fines were paid; and therefore it is contended that the clerk acted without authority in inserting this provision as a part of the judgment recited in the commitment.

The petition raises an important and, in this district at least, a novel question of practice and procedure with regard to the enforcement of fines in criminal cases in the federal courts. It is desirable therefore to state the prevailing practice and review the applicable law with some fullness.

The enforcement of sentences and judgments for fines in criminal cases is regulated by title 18 USCA §§ 569 and 641 (R. S. §§ 1041, 1042), both derived from the Act of June 1, 1872, c. 255, 17 Stat. 198. Section 569 provides that fines imposed in criminal cases may be collected by execution as in civil cases; but where the judgment directs imprisonment until the fine is paid, execution shall not operate to discharge the defendant from imprisonment until the fine is paid. But, section 641 provides that when a poor convict has been imprisoned for 30 days in consequence of the nonpayment of fine, he may be discharged upon taking the oath in the form prescribed as to lack of property. It will be noted that neither section expressly provides for imprisonment for nonpayment of fine but it is clearly implied that this is authorized and it has been uniformly so held. Ex parte Jackson, 96 U. S. 727, 737, 24 L. Ed. 877; In re Greenwald (C. C. Cal. 1896) 77 F. 590; Ex parte Barclay (C. C. Me. 1907) 153 F. 669; Haddox v. Richardson (C. C. A. 4) 168 F. 635; Allen v. Clark (C. C. A. 4) 126 F. 738; Chapman v. United States (C. C. A. 5) 10 F.(2d) 124, certiorari denied 271 U. S. 667, 46 S. Ct. 482, 70 L. Ed. 1141; United States v. Pratt (D. C. N. H.) 23 F.(2d) 333. This was also the customary practice at common law. I Chitty's Criminal Law (4th Am. Ed. 1841) side pages 809, 810; Bishop's New Criminal Procedure, vol. II, § 1801; Ex parte Watkins, 7 Pet. 568, 8 L. Ed. 786 (dealing with the early Maryland law and practice). This is recognized in some of the federal cases above referred to. In applying these federal statutes it has been held the district court does not have the authority to impose a specific term of additional imprisonment in default of payment of the fine Chapman v. United States (C. C. A. 5) 10 F.(2d) 124; and apparently until the passage of the Act of Congress of 1872 (supra) the commitment theoretically at least was until the fine was paid. See Ex parte Watkins, supra. In many and probably most of the States, the duration of the imprisonment for nonpayment of fine is expressly regulated by statute, as in Maryland, Code Pub. Gen. Laws 1924, art. 38, § 3; Dean v. State, 98 Md. 80, 56 A. 481; Callahan v. State, 163 Md. 298, 302, 162 A. 856. And where the sentence includes a specific term of imprisonment and in addition thereto a fine, imprisonment for nonpayment of the fine is to be in the same prison to which the defendant is sentenced on the term of imprisonment. Haddox v. Richardson (C. C. A. 4) supra; and it has also been held and is, I believe, the general practice in this district that where several fines are imposed, at least on one indictment only, the defendant is entitled to be discharged on taking the oath after serving 30 days, and is not required to serve 30 days for each fine. Grier v. Kennan (C. C. A. 8) 64 F.(2d) 605.

It is not here contended by the defendant that the court was without power to imprison for nonpayment of the fine, but the point is made that the commitment issued by the clerk could not validly include the provision as to commitment for nonpayment of the fine, because the judge in orally stating the sentence did not expressly state that there should be commitment to prison in the event of nonpayment of the fine. It is said by the defendant that as the mode of enforcement of the fine could be either by imprisonment or by execution as in civil cases, it was discretionary with the court which mode of execution should be adopted and as imprisonment was not expressly specified, it must be considered to have been excluded. Wagner v. United States (C. C. A. 9) 3 F.(2d) 864; Boyd v. Archer (C. C. A. 9) 42 F.(2d) 43, 70 A. L. R. 1507. It is, however, entirely clear that the modes of enforcing the judgment for the fine, by execution or by imprisonment, were not alternative or mutually exclusive, one of the other, by the practice at common law, and section 569 expressly provides that the issuance of execution shall not be effective to discharge the defendant from imprisonment until the amount of the judgment is collected or otherwise paid, when the judgment directs imprisonment. In the present case it does not appear that execution has ever been issued nor that the sentence of the court made any reference thereto, nor that anything occurred from which it could be inferred that it was the intention of the judge in pronouncing the sentence to exclude the usual course of imprisonment for nonpayment of the fine.

The contention now made runs counter to the long established and invariable practice of this court. The memory of certain of the court officials extends over a period of more than forty years. During this time it has never been the practice for the judge in sentencing a defendant to the payment of a fine in a criminal case, either with or without a specific term of imprisonment as authorized by the particular statute violated, to expressly direct that the defendant shall stand committed to prison until payment of the fine or until discharged in due course of law; but nevertheless it has been the invariable practice and procedure in such cases (unless otherwise expressly directed by the judge) that the defendant has been in fact committed to prison for the nonpayment of the fine until discharged by taking the requisite oath. And this was the practice of the court until March 1924, even though the commitment issued by the clerk did not contain the express provision now sought to be eliminated in this case. I am informed by the clerk that in March 1924, some question having arisen as to the authority of the jailer to detain a prisoner for the nonpayment of fine in the absence of an express direction in the commitment to that effect, he was instructed to include this express provision in all subsequent commitments where fines imposed were not paid by the defendant (unless the judge otherwise directed), and this has been the invariable practice since then followed by the clerk with the approval of the district judges of this court. The judgment as entered on the docket by the clerk recites the term of imprisonment and the amount of the fine or fines, as announced in the sentence but does not recite the commitment in default of payment of the fine. This has been the long established practice, and was followed in this particular case.

The point now made assumes that there was no commitment by the court at the time of sentence; but this also ignores the customary practice as to what occurs and what did occur in this case. It should be said here that I imposed the sentence and have personal knowledge of what occurred, all of which was in accordance with the established and customary practice of the court. When the defendant is sentenced to pay a fine, if it is not at once paid, he is immediately taken into custody by the marshal or deputy marshal who is personally present at all sessions of the court when sentences are imposed in criminal cases. And this occurred in the present case. By long established practice in ...