Hoffman v. United States
| Citation | 13 F.2d 278 |
| Decision Date | 10 May 1926 |
| Docket Number | No. 3698.,3698. |
| Parties | HOFFMAN v. UNITED STATES. |
| Court | United States Courts of Appeals. United States Court of Appeals (7th Circuit) |
Alfred S. Austrian, of Chicago, Ill., for plaintiff in error.
John E. Byrne, of Chicago, Ill., for the United States.
Before EVANS, PAGE, and ANDERSON, Circuit Judges.
The District Court found plaintiff in error guilty of contempt, because he did not, as sheriff of Cook county, Ill., take and keep two certain prisoners in the Cook county jail, as commanded. One of the prisoners was delivered into possession of the sheriff on October 11, 1924, under a sentence for one year; the other was so delivered on November 11, 1924, for a like term.
As to the prisoner first committed, the court found that the sheriff, in disobedience of the order of commitment, had permitted him to go at large many times, and fined the sheriff therefor $2,500. As to the second commitment, the court found: (a) That, in disobedience, the sheriff had permitted the prisoner to leave the jail some 90 times, for the ostensible purpose of going to a dentist; (b) that at many other times he was permitted to go at large at his own will and pleasure; and (c) that, in further disobedience, the sheriff had ordered his jailer, Westbrook, to allow the criminal to leave the jail and go to a dentist's office. On each of said findings the court sentenced the sheriff to a term of 30 days in jail, such jail sentences to commence and run concurrently. The sheriff has not paid his fine nor served any part of his sentence.
It is urged that: (a) The sentence of both fine and imprisonment was error; (b) there was no competent evidence to support any finding of contempt. If there was but one contempt, the punishment should have been fine or imprisonment. Section 268, Judicial Code (Comp. St. § 1245).
In support of the contention that there was a double penalty, plaintiff in error urges that prisoners are held under the judgment of the court, and not under the mittimus. The authorities cited do not support the contention. Of course, the mittimus must be supported by a judgment. All that is said in Ex parte Wilson, 114 U. S. 417, 421, 5 S. Ct. 935, 937 (29 L. Ed. 89), cited, is that: "The certified copy of the record of the sentence, * * * if valid upon its face, is sufficient to authorize the keeper to hold the prisoner, without any warrant or mittimus." We deem that unimportant, because the prisoners were sent there, as appears, under separate writs of commitment. Here, a part of the offenses, for which the sheriff was called to answer, pertained to disobedience regarding the imprisonment of one man, and a part to the other. Disobedience as to one prisoner of one writ, on one day, and of another writ, as to another prisoner, on another day, are separate offenses.
It is further urged that plaintiff in error was charged with only one contempt. Some question arose upon the hearing about the petition against Hoffman. "Thereupon the court inquired of counsel for said Peter M. Hoffman as to whether for not any claim would be made by said respondent as to the alleged failure of the United States attorney to file a petition against said respondent Hoffman charging contempt of court." In response thereto, Hoffman "waived any objection to said proceedings upon the alleged failure to file a petition charging said respondent with contempt of court," and stipulated that he "had been and was then fully advised, and had been duly, properly, and sufficiently informed, of the contempt against which he was required to defend."
The claim is that plaintiff in error only stipulated that he was properly informed of "the contempt," not of a dozen or more contempts. Plaintiff in error was stipulating, not that he knew what was charged against him in any pleading, but that he was fully informed as to what he was called to defend. The facts were then all before the court, and plaintiff in error, before the stipulation was made, knew, not only the facts, but that it was proposed to punish him separately for disobedience of each writ of commitment. He was not misled by the use of the word "contempt," instead of the word "contempt." Whether permitting one of the prisoners to be absent from the jail many times on different days in different months constituted one offense, or many offenses, we need not decide, because the sentences for the three separate contempt found are made concurrent.
In support of the contention that there was no competent evidence to support the finding of any contempt, plaintiff in error seeks to invoke...
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