De Benque v. United States, 6617.

Decision Date11 May 1936
Docket NumberNo. 6617.,6617.
Citation66 App. DC 36,85 F.2d 202
PartiesDE BENQUE v. UNITED STATES.
CourtU.S. Court of Appeals — District of Columbia Circuit

James J. Laughlin, of Washington, D. C., for appellant.

Leslie C. Garnett, U.S. Atty., and John J. Wilson, Asst. U. S. Atty., both of Washington, D.C.

Before MARTIN, Chief Justice, and ROBB, GRONER, and STEPHENS, Associate Justices.

STEPHENS, Associate Justice.

This is an appeal from a judgment of the Supreme Court of the District of Columbia entered December 20, 1935, sentencing the appellant (hereinafter referred to as the defendant) to fifteen months in the penitentiary. The question in the case is as to the validity of this sentence.

The facts are as follows: On November 27, 1933, the defendant, having been convicted of the crime of grand larceny, was sentenced to be imprisoned for a period of two to four years on each of three counts of an indictment, the sentences to run concurrently and to take effect from the date of imposition.1 These sentences were imposed under the terms of the "Act to establish a Board of Indeterminate Sentence and Parole for the District of Columbia and to determine its functions, and for other purposes," approved July 15, 1932, 47 Stat. 696.2 But the felonies of which the defendant had been convicted were all committed prior to July 15, 1932, and under Section 7 of the Act just referred to (D.C.Code Supp. I, 1933, T. 6, § 457) it was provided that:

"for any felony committed before this Act takes effect July 15, 1932, the penalty, sentence, or forfeiture provided by law for such felony at the time such felony was committed shall remain in full force and effect and shall be imposed, notwithstanding this Act sections 451-458 of this title."

The defendant entered at once upon the service of the sentences imposed upon her, being confined in the District of Columbia Workhouse at Occoquan, Virginia; but on or about the nineteenth day of December, 1935, after she had served approximately twenty-five months, she filed a petition for a writ of habeas corpus in the United States District Court for the Eastern District of Virginia. A writ was issued and the defendant was, upon the same day, after a hearing, discharged upon the ground that there should have been imposed upon her the sentences provided by law for the felonies in question at the time they were committed, not sentences under the indeterminate sentence law. The defendant was, however, remanded to the custody of the United States marshal for the District of Columbia to the end that the Supreme Court of the District of Columbia might pronounce judgment and sentence upon her in accordance with law; and on December 20, 1935, she was brought before that court, which set aside and held for naught the prior sentences, and imposed upon the defendant a new sentence of imprisonment for a period of fifteen months on each of the three counts of the indictment referred to, such sentences to run concurrently and to take effect from the date of imposition.3 The action of the court taken on December 20, 1935, was within a term of court later than that during which the original sentences were imposed. It is conceded by the Government that the original sentences ought not have been imposed under the indeterminate sentence law.

By the assignment of errors two questions are presented: 1. The term having passed, had the trial court authority to resentence the defendant? 2. If so, ought the new sentences have been imposed so as to commence to run as of the date of the original sentences?

1. It is the general rule that a court loses jurisdiction of a case at the end of the term at which judgment was entered unless it expressly carries the disposition of the case over to a subsequent term. United States v. Mayer, 235 U.S. 55, 35 S.Ct. 16, 59 L.Ed. 129; United States v. Pile, 130 U.S. 280, 9 S.Ct. 523, 32 L.Ed. 904; Fine v. United States (C. C.A.) 67 F.(2d) 591; Ex parte Singer (C.C.A.) 284 F. 60. If, however, the judgment was void, the general rule does not apply. Bryant v. United States (C. C.A.) 214 F. 51; Hammers v. United States (C.C.A.) 279 F. 265. In the latter case the defendant was sentenced, in each of twelve cases under the Harrison Anti-Narcotic Act (see 26 U.S.C.A. § 1040 et seq.), to the United States penitentiary at Atlanta, Georgia, for a term of less than one year. Thereafter, upon habeas corpus, he was discharged and remanded, and at a subsequent term was resentenced to six months in a county jail, all upon the theory that the original sentences were void since the law did not authorize sentence to imprisonment in a penitentiary for less than one year. A principal contention of the defendant was that he was not subject to be resentenced at a term subsequent to the one at which he was convicted. The court, after stating that the sentences originally imposed were invalid, said:

"The imposition of a void sentence is not an obstacle to the assumption by the court which imposed it of jurisdiction of the convict, in order that a legal sentence may be imposed. Where there is a conviction, accompanied by a void sentence, the court's jurisdiction of the case for the purpose of imposing a lawful sentence is not lost by the expiration of the term at which the void sentence was imposed. The case is to be regarded as pending until it is finally disposed of by the imposition of a lawful sentence.

"If the invalidity of the sentences had been directly attacked, clearly jurisdiction would have been retained after the expiration of the trial term. In sound reason the case should not be different where the attack is collateral. One duly convicted, but not sentenced as authorized by law, cannot defeat the court's incompletely exercised jurisdiction over him by attacking a void sentence in habeas corpus proceedings instituted after the adjournment of the term at which such void action was taken. Citing Bryant v. United States, supra" 279 F. 265, at pages 266-267.

The theory seems to be that where the original judgment is void, it, in form of law, accomplished nothing, there was no final disposition of the case, and the court's power was therefore unexercised; and, in point of substance, the defendant, having sought release on the theory that the judgment was void, cannot turn about and escape due punishment merely because the term has passed, that is to say, the defendant cannot assert the judgment void to defeat it, and then assert it merely voidable to defeat a new judgment.

It is further definitely settled in the Federal courts that where in a criminal case a sentence is not imposed in strict accordance with the penalty statute, the sentence is void in a fundamental sense. This rule, on first thought, appears to be in conflict with the proposition laid down in civil cases that a court has jurisdiction in the sense that its erroneous action is voidable only, not void, when the parties are properly before it, the proceeding is of a kind or class which the court is authorized to adjudicate, and the claim set forth for the court's action is not obviously frivolous. Cooper v. Reynolds, 10 Wall. 308, 19 L.Ed. 931; Binderup v. Pathe Exchange, 263 U.S. 291, 44 S.Ct. 96, 68 L.Ed. 308; Brougham v. Oceanic Steam Navigation Co. (C.C.A.) 205 F. 857. But in criminal cases the theory apparently is that the penalty statutes are themselves jurisdictional, that is to say, that they delimit the very power of the court. But whatever the theory, there can be no question about the rule. In In re Mills, 135 U.S. 263, 10 S.Ct. 762, 34 L.Ed. 107, where the defendant was sentenced, under each of two indictments, to one year in a penitentiary, when the statute permitted such imprisonment only for sentences longer than a year, the Supreme Court held the sentences void. Speaking through Mr. Justice Harlan, the Court said:

"The court below was without jurisdiction to pass any such sentences, and the orders directing the sentences of imprisonment to be executed in a penitentiary are void. This is not a case of mere error, but one in which the court below transcended its powers." Authorities cited 135 U.S. 263, at page 270, 10 S.Ct. 762, 764, 34 L.Ed. 107.

Again, in In re Bonner, 151 U.S. 242, 14 S. Ct. 323, 325, 38 L.Ed. 149, where a similar sentence was for the same reason held void, the Court, speaking through Mr. Justice Field, said: "in all cases where life or liberty is affected by its proceedings, the court must keep strictly within the limits of the law authorizing it to take jurisdiction and to try the case and to render judgment. It cannot pass beyond those limits in any essential requirement in either stage of these proceedings * * *. From a somewhat extended examination of the authorities we will venture to state some rule applicable to all of them, by which the jurisdiction as to any particular judgment of the court in such cases may be determined. It is plain that such court has jurisdiction to render a particular judgment only when the offence charged is within the class of offences placed by the law under its jurisdiction; and when, in taking custody of the accused, and in its modes of procedure to the determination of the question of his guilt or innocence, and in rendering judgment, the court keeps within the limitations prescribed by the law, customary or statutory. When the court goes out of these limitations, its action, to the extent of such excess, is void. Proceeding within these limitations, its action may be erroneous, but not void." 151 U.S. at pages 256-257, 14 S.Ct. 323, 325.

Perhaps the most extreme illustration of this rule is in the case of Harman v. United States (C.C.) 50 F. 921. There the defendant, under a statute which authorized a fine and imprisonment at hard labor, was sentenced merely to fine and imprisonment. The sentence was, for the omission of hard labor, held void. Speaking through Caldwell, Circuit Judge, the court said:

"In the courts of the United States the...

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