Zerbst v. Walker
| Decision Date | 25 November 1933 |
| Docket Number | No. 821.,821. |
| Citation | 67 F.2d 667 |
| Parties | ZERBST, Warden, v. WALKER. |
| Court | U.S. Court of Appeals — Tenth Circuit |
S. M. Brewster, U. S. Atty., of Topeka, Kan. (L. E. Wyman, Asst. U. S. Atty., of Hutchinson, Kan., on the brief), for appellant.
Lee Bond, of Leavenworth, Kan., for appellee.
Before LEWIS, PHILLIPS, and BRATTON, Circuit Judges.
Appellee presented his petition to the District Judge wherein he complained he was illegally confined in the United States penitentiary at Leavenworth, Kansas, by the warden. He asked that writ of habeas corpus be granted commanding appellant to produce him, and that on hearing he be discharged. He alleged that on November 13, 1919, he was sentenced by the United States District Court for the District of Oregon to a term of five years imprisonment to be served in the penitentiary at McNeil Island, and that he was received there on the 18th of that month; that on January 28, 1920, while he was a trusty he escaped, and later being a fugitive he was arrested at St. Louis, Missouri, charged with violations of sections 163 and 169 of the Criminal Code; that on December 22, 1925, he plead guilty to those charges in the United States District Court for the Eastern District of Missouri, and was sentenced by that court to serve eight years in the penitentiary on each charge in the eight counts of an indictment, sentences being made to run concurrently; that on January 19, 1926, he was committed to the penitentiary at Leavenworth and began serving said sentences.
It appears from the warden's return and exhibits attached that appellee served only 71 days of his sentence at McNeil Island. When he escaped on January 28, 1920, there remained 1754 days of his five year sentence. On March 2, 1926, about two months and a half after appellee was committed to the warden at Leavenworth to serve the sentences imposed by the court in Missouri, the warden was notified by the Attorney General that appellee had escaped from the penitentiary at McNeil Island while serving a sentence of five years there, and that inasmuch as there would be considerable expense in requiring appellee to serve the balance of that sentence at McNeil Island the warden was notified to detain appellee for service of the remainder of that sentence in the penitentiary at Leavenworth.
Appellee in his petition for the writ claimed that after deducting the time allowed for good conduct to which he was entitled under section 710, title 18, U. S. Code (18 US CA § 710), he had fully served the sentences imposed on him by the District Court for the Eastern District of Missouri, that he had served the remainder of his term at McNeil Island concurrently with the terms imposed by the court for the Eastern District of Missouri, and was therefore entitled to his discharge. The District Judge for the District of Kansas so ordered and discharged appellee from custody. This is an appeal from that order.
It is the common law rule and the general practice, we think, in the Federal courts where a defendant is convicted at one and the same time of several distinct offences charged in one indictment or in several indictments to designate whether the several sentences shall run concurrently or consecutively. This is the exercise of an appropriate discretion on the part of the court. It may be done also where the defendant is in prison at the time of a second or subsequent trial, the sentence imposed on the second trial being made concurrent or cumulative with that imposed at the first trial which the defendant is then serving, he having been brought into court by habeas corpus, if necessary, for a second trial.
Obviously where an escaped prisoner commits other offences while at large, as here, and is tried and sentenced therefor, the court is not in a position to exercise a discretion whether the sentences then imposed shall be served concurrently with or in succession to the remainder of his prior sentence, unless advised of...
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