United States v. Remus

Decision Date08 April 1926
Docket NumberNo. 4484.,4484.
Citation12 F.2d 239
PartiesUNITED STATES v. REMUS.
CourtU.S. Court of Appeals — Sixth Circuit

Simon Ross, of Cincinnati, Ohio (Haveth E. Mau, U. S. Atty., and A. Lee Beaty, Asst. U. S. Atty., both of Cincinnati, Ohio, on the brief), for the United States.

Leonard Garver, Jr., of Cincinnati, Ohio (Lorbach & Garver, of Cincinnati, Ohio, on the brief), for appellee.

Before DENISON, DONAHUE, and MOORMAN, Circuit Judges.

MOORMAN, Circuit Judge.

Appellee was convicted in the United States District Court for the Southern District of Ohio of conspiracy to violate the National Prohibition Act (Comp. St. Ann. Supp. 1923, § 10138¼ et seq.), and was sentenced May 16, 1922, to confinement in the penitentiary at Atlanta, Ga., for a period of two years. Thereafter, on May 20, 1922, he was charged with violating title 2 of the National Prohibition Act (Comp. St. Ann. Supp. 1923, § 10138½ et seq.), and after trial and conviction was sentenced on May 24th to imprisonment in the jail of Montgomery county, Ohio, for one year. Writs of error were prosecuted from both convictions and the judgments affirmed. United States v. Remus (C. C. A.) 291 F. 501 and 513. In January of 1924 he was committed to the penitentiary, but was released therefrom September 2, 1920, after serving the longer sentence. On March 11, 1925, a mittimus was issued on the sentence imposed under the conviction of May 24th, pursuant to which he was taken in custody by the marshal shortly after September 2d. On September 8th he filed this petition for a writ of habeas corpus, alleging that he had served in full the longer of the two sentences, and in so doing had served concurrently therewith the shorter sentence for the misdemeanor. Upon hearing the writ was granted, to reverse which this appeal is prosecuted.

The federal courts have full power to impose cumulative sentences, or to require two or more sentences to be served separately. Howard v. United States (6 C. C. A.) 75 F. 986, 21 C. C. A. 586, 34 L. R. A. 509. It has been held, however, that if in a single judgment entry a defendant is given more than one sentence in the same penitentiary for different offenses, set out in separate indictments tried together, and there is no direction as to the order of service, the sentences are to be regarded as running concurrently. United States v. Patterson (C. C.) 29 F. 775. The obvious reason for this is that in such case it does not appear whether the sentences are to be served concurrently or consecutively, and, if consecutively, which one the prisoner is serving after his incarceration, thus giving cause for doubt, which must be...

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10 cases
  • U.S. v. Earley, 85-2673
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • April 21, 1987
    ...of multiple sentences by the same judge at the same time. See, e.g., Hode v. Sanford, 101 F.2d 290 (5th Cir.1939); United States v. Remus, 12 F.2d 239 (6th Cir.) (referring to United States v. Patterson, 29 F. 775 (C.C.1887)), cert. denied, 271 U.S. 689, 46 S.Ct. 640, 70 L.Ed. 1153 (1926). ......
  • Buie v. King, 304.
    • United States
    • U.S. District Court — Western District of Missouri
    • September 29, 1942
    ...Rosso v. Aderhold, 5 Cir., 67 F.2d 315; Zerbst v. Kidwell, 5 Cir., 92 F.2d 756; Aderhold v. McCarthy, 5 Cir., 65 F.2d 452; United States v. Remus, 6 Cir., 12 F.2d 239; Odekirk v. Ryan, 6 Cir., 85 F.2d 313; Biddle v. Hall, 8 Cir., 15 F.2d 840; Buessel v. United States, 2 Cir., 258 F. The Dis......
  • Buie v. King, 12520.
    • United States
    • U.S. Court of Appeals — Eighth Circuit
    • August 2, 1943
    ...116 F.2d 978; Bryant v. United States, 8 Cir., 214 F. 51. It is the intent appearing in the judgment entry that controls. United States v. Remus, 6 Cir., 12 F.2d 239. "`Sentences in criminal cases should reveal with fair certainty the intent of the court and exclude any serious misapprehens......
  • Kinney, In re
    • United States
    • Appeals Court of Massachusetts
    • June 24, 1977
    ...to sentence the petitioner in this manner indicates his desire that the sentences should not run concurrently. See United States v. Remus, 12 F.2d 239, 240 (6th Cir.), cert. den., 271 U.S. 689, 46 S.Ct. 640, 70 L.Ed. 1153 2. The petitioner also argues that he was denied equal protection of ......
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