Daugherty v. United States

• Citation: 4 F.2d 344
• Decision Date: 30 January 1925
• Docket Number: No. 6595.,6595.
• Parties: DAUGHERTY v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

4 F.2d 344 (1925)

DAUGHERTY v. UNITED STATES.^*

No. 6595.

Circuit Court of Appeals, Eighth Circuit.

January 30, 1925.

James Daugherty, pro se.

Lafayette French, Jr., U. S. Atty., and George A. Heisey, Asst. U. S. Atty., both of St. Paul, Minn.

Before SANBORN and LEWIS, Circuit Judges, and FARIS, District Judge.

PER CURIAM.

The district attorney has filed petition for rehearing in this case, complaining that we erred in holding that the sentence imposed on Daugherty was imprisonment for five years, and in not holding that it was for fifteen years. On this subject 16 C. J., 1306, says:

"However, where successive terms of imprisonment are imposed, the sentence ought to be so definite and certain as to advise the prisoner and the officer charged with the execution of the sentence of the time of its beginning and termination, without their being required to inspect the records of any other court or of any other case. Thus a sentence to a term of years `to commence after the expiration of former sentence,' or `to commence at the expiration of the sentence aforesaid,' but containing nothing which shows to what the terms `former sentence' or `sentence aforesaid' relate, has been held to be void for uncertainty. Where defendant is found guilty of more than one offense, if the court desires to have imprisonment under one sentence commence on the expiration of another, the sentence must so state, or else the two terms of imprisonment will run concurrently, and defendant will be entitled to his discharge at the expiration of the longest term."

These among others, are cited in support of the text:

Fortson v. Elbert County, 117 Ga. 149, 43 S. E. 492, wherein it appeared that Fortson was sentenced to 12 months' imprisonment for one offense, and on the next day he was tried, convicted and sentenced to 12 months' imprisonment for a second misdemeanor. The judgment in the second case did not provide that the imprisonment thereunder should begin from the expiration of the sentence on the first verdict. He applied for release by habeas corpus at the end of twelve months. The Supreme Court of Georgia, after noticing the common-law doctrine that terms of imprisonment on separate offenses run concurrently, said that, where it was intended that the sentences should run consecutively, "the time the second sentence must begin shall be stated in the sentence. Failure to make such provision leaves the defendant in a position where he can claim that he has served either of the sentences, or both. And this is not a mere technical right. It might be of substantial importance." The importance is illustrated by possible reversal of the conviction as to one of the offenses.

In Re Breton, 93 Me. 39, 44 A. 125, 74 Am. St. Rep. 335, it appeared that Breton was convicted on two complaints for illegally keeping intoxicating liquors for sale, and received an alternative sentence of 60 days' imprisonment in each case. It was not stated which imprisonment should be suffered first, nor that sentence in either case should begin at the expiration of the sentence in the other. The Supreme Court of Maine, after noting the common-law rule, said: "All the authorities agree, however, that in the absence of any statute, if it is not stated in either of two sentences imposed at the same time that one of them shall take effect at the expiration of the other, the two periods of time named will run concurrently, and the two punishments be executed simultaneously. Such Mr. Bishop declares to be the rule of the common law (1 Bish. Cr. Proc. 1310), and such has been the unquestioned rule of procedure in this state. It is familiar practice that, wherever the court imposing several sentences desires to have one begin on the expiration of another, that fact is expressly stated in the sentence; and whenever the court inadvertently fails to have the sentence recorded in that form, or from leniency intentionally omits to add such a provision, and the convict is committed in pursuance of such sentences, he is either voluntarily released by the jailer or discharged on habeas corpus at the expiration of the...