Anderson v. Denver

• Decision Date: 22 March 1920
• Docket Number: 5408,5409.
• Parties: ANDERSON, Warden, v. DENVER et al. SAME v. ESTERBROOK.
• Court: U.S. Court of Appeals — Eighth Circuit

265 F. 3

ANDERSON, Warden, v. DENVER et al.

SAME v. ESTERBROOK.

Nos. 5408, 5409.

United States Court of Appeals, Eighth Circuit.

March 22, 1920

L. S Harvey, Asst. U.S. Atty., of Kansas City, Kan. (Fred Robertson, U.S. Atty., of Kansas City, Kan., on the brief) for appellant.

Lee Bond, of Leavenworth, Kan., for appellees.

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

LEWIS District Judge.

These appeals bring here and challenge final orders discharging Frank Nolan, Jack Denver, and George Esterbrook, on habeas corpus, from custody of appellant as Warden of the United States Penitentiary at Leavenworth. They were incarcerated there in 1915, and held until 1919, a period of four years less allowance for good behavior.

These are the undisputed facts: Appellees and one George Oaks were jointly indicted for burglariously entering five post offices in the Eastern District of Illinois. On September 10th they pleaded guilty, and each was sentenced to a term of four years imprisonment at hard labor in the penitentiary. Thereupon they were placed in jail to await removal. This judgment and sentence was never entered of record. Oaks pleaded not guilty, and during his trial the court ordered appellees brought in. When they were brought in by the marshal the court, on September 16th, resentenced each of them to a term of twenty years imprisonment at hard labor in the penitentiary. They were taken back to jail, but this judgment and sentence was never entered of record. The jury found Oaks guilty, he was sentenced to a term of three years and thereafter the court, in the absence of appellees, resentenced each of them to a term of fifteen years imprisonment at hard labor. This judgment and sentence was entered of record by the clerk and on it they were committed and held. It recites that everything occurred on September 10th-- pleas of guilty, judgment and sentence, and that appellees were present. At no time were they represented by counsel. They did not know that they had been sentenced to imprisonment for fifteen years until after they were put in the penitentiary. As we view it, the action of the court in imposing a sentence of twenty years, on September 16th, operated to set aside its prior sentence of four years; and likewise, its later action in resentencing appellees for fifteen years operated to set aside its prior sentence of twenty years.

What was the legal result of the action of the court in attempting to impose the sentence of fifteen years imprisonment on appellees in their absence? If this was a mere irregularity in procedure, the judgment and sentence so ordered and entered was not void but only voidable; and such an error can be brought into review, examination and correction only on direct procedure for that purpose. But if that judgment was and is void it is subject to collateral attack in this way. Harlan v. McGourin, 218 U.S. 442, 31 Sup.Ct. 44, 54 L.Ed. 1101, 21 Ann.Cas. 849; United States v. Lair, 195 F. 47, 115 C.C.A. 49; 1 Black on Judgments, Sec. 256; 2 Freeman on Judgments (4th Ed.) Sec. 623; 12 R.C.L. 1197; 21 Cyc. 296. At the time the court acted there was nothing before it except the indictment and the pleas of guilty ore tenus, shown on the judge's docket, which pleas appellees had a right to ask to withdraw before final action was taken against them, and to be otherwise heard before sentence of imprisonment was passed. It is a fundamental principle in the criminal law and its administration that a defendant must be present at all times during his trial. The principle was so firmly embedded in the common law as a necessary and appropriate means to the protection of liberty that it received recognition and was applied not only by State and Federal courts but given additional guarantees in State and Federal Constitutions. Thus, under a statute which but announced the common law principle, that a defendant must be personally present at his trial for felony, it was said:

'We are of opinion that it was not within the power of the accused, or his counsel, to dispense with the statutory requirement as to his personal presence at the trial. The argument to the contrary necessarily proceeds upon the ground that he alone is concerned as to the mode by which he may be deprived of his life or liberty, and that the chief object of the prosecution is to punish him for the crime charged. But this is a mistaken view as well of the relations which the accused holds to the public as of the end of human punishment. * * * If he be deprived of his life or liberty without being so present, such deprivation would be without that due process of law required by the constitution. ' Hopt v. Utah, 110 U.S. 574, 4 Sup.Ct. 202, 28 L.Ed.

...