De Bara v. United States

• Decision Date: 12 February 1900
• Docket Number: 799.
• Citation: 99 F. 942
• Parties: DE BARA v. UNITED STATES.
• Court: U.S. Court of Appeals — Sixth Circuit

99 F. 942

DE BARA v. UNITED STATES.

No. 799.

United States Court of Appeals, Sixth Circuit.

February 12, 1900

Harlan Cleveland, for appellant.

Wm. D Gordon, U.S. Atty.

Before TAFT, LURTON and DAY, Circuit Judges.

DAY Circuit Judge.

Edgar De Bara, being in custody of the superintendent of the house of correction, at Detroit, Mich., in pursuance of a sentence and judgment of the United States district court for the Northern district of Illinois, filed his petition in the district court of the United States for the Eastern district of Michigan, praying allowance of a writ of habeas corpus, to the end that he might be discharged from custody. Upon hearing the court denied the prayer of the petition, and dismissed the same. An appeal was allowed to this court, and the correctness of the judgment of the district court is now before us for review. It appears from the transcript of the record filed in the case that on the 5th of May, 1898, an indictment was returned against Edgar De Bara and one Fanny De Bara for violation of section 5480 of the Revised Statutes of the United States (1 Supp. Rev. St. p. 694), charging in three counts separate violations of said section. On the 1st of June, 1899, in open court, in the presence of the defendants and with their consent, it was agreed that causes 3,007, 3,008, 3,009, 3,010, 3,011, 3,012, 3,013, 3,014 3,015, 3,016, and 3,017 should be consolidated and tried with 'this cause' (entry to that effect being made in said cause No. 3,012); that all of said causes should be tried by the same jury. It was therefore ordered by the court that said causes be consolidated. The causes, other than 3,012, in which a copy of the indictment is set forth in the transcript of the record, are said to be indictments for violations of the section of the statutes above referred to; each indictment, as in the case of indictment No. 3,012 containing three counts. From the transcript of the record it does not appear very distinctly as to the nature of the cases other than 3,012, in which the indictment is set forth; but, upon the statements of the petition for allowance of the writ and of counsel in presenting the case, it may be taken that each of these was an indictment for offenses similar to those charged in No. 3,012. Upon the same day upon which the order of consolidation was made, defendants having pleaded not guilty to the indictments in all the cases, trial was had to a jury. On the 5th of June, 1899, the jury returned a verdict finding the defendants guilty as charged in all the counts in cases Nos. 3,009, 3,012, and 3,015, and on counts 2 and 3 in indictments 3,007, 3,008, 3,010, 3,011, 3,013, 3,014, 3,016, and 3,017. Motion for a new trial having been overruled, judgment was pronounced as follows, on June 17, 1899:

'Came the parties by their attorneys, and the defendant in his own proper person, in the custody of the marshal, to have the sentence and the judgment of the court pronounced upon him, he having heretofore, to wit, on the 5th day of June, 1899, one of the days of this term of court, been found guilty by a jury in due form of law as charged in the indictment filed herein against him; and the defendant being asked by the court if he has anything to say why the sentence and judgment of the court should not now be pronounced upon him, and showing no good and sufficient reason why sentence and judgment should not be pronounced, it is therefore considered by the court, and as the sentence and judgment of the court, upon the verdict of guilty so rendered by the jury as aforesaid, that the defendant, Edgar De Bara, be confined and imprisoned in the house of correction, at Detroit, in the state of Michigan, for and during the term of three years.'

Prior to the passing of sentence, on June 17, 1899, an order was made that a nolle prosequi be entered as to the first count in each of the cases numbered 3,007, 3,008, 3,010, 3,013, 3,014, 3,016, and 3,017. On the 20th of June, 1899, an order was entered in said record of case numbered 3,012, as consolidated, that the sentence imposed upon said Edgar De Bara begin to run at noon, on June 20, 1899. In the petition filed in the district court for the allowance of the writ, it was alleged that the court had no authority to sentence the petitioner except as granted by section 5480 of the Revised Statutes; that said trial and sentence was a violation of said statutory provision. It further states that the court had no jurisdiction to order a trial upon a consolidation of the 11 indictments; that the maximum punishment by imprisonment should not exceed 18 months, or a fine of $500, or both; that the sentence of the court for 3 years is wholly unauthorized, illegal, and void.

Section 5480, which prohibits and punishes any use of the mails of the United States for fraudulent purposes, provides a penalty for each violation of such section, as follows:

'Shall upon conviction be punishable by fine of not more than $500 and by imprisonment for not more than eighteen months, or by both such punishments, at the discretion of the court. The indictment, information, or complaint may severally charge offenses to the number of three when committed within the same six calendar months; but the court thereupon shall give a single sentence, and shall proportion the punishment especially to the degree in which the abuse of the postoffice establishment enters as an instrument into such fraudulent scheme and device.'

As to the alleged error in consolidating the indictments, it appears in the record that this was done with the consent of the appellant, and whether erroneous or not it is immaterial now to inquire. This is not a proceeding in error, and mere assignments of error cannot be inquired into in a proceeding in habeas corpus. This point was distinctly passed upon by this court in Howard v. U.S., 21 C.C.A. 586, 75 F. 986, 34 L.R.A. 509, where it was held that this question of alleged error in the order of consolidation could only be reviewed upon a writ of error after exception had been taken in the court below. In the Howard Cast it was also determined that the order of consolidation did not make one case of the several indictments. It does not very clearly appear whether the district court in Illinois in passing sentence upon De Bara predicated its action upon a conviction had under the indictment in case No. 3,012, or upon the conviction upon all the indictments, nor, in the view we take of this case, is it necessary to construe this judgment. As we have already said, it is not the office of the writ of habeas corpus to serve as a writ of error. It can only be granted in cases where the court has exceeded its authority, and has undertaken to act beyond its power and jurisdiction.

In Ex parte Virginia, 100 U.S. 339-343, 25 L.Ed. 678, the court, speaking by Mr. Justice Strong, uses this language:

'In Ex parte Lange, 18 Wall. 163, 21 L.Ed. 872, it was ruled, after an examination of authorities, that when a prisoner shows that he is held under a judgment of a federal court, given without authority of law, this court, by writs of habeas corpus and certiorari, will look into the record, so far as to ascertain whether that is the fact, and, if it is to be found so, will discharge him. Mr. Justice Miller said, in delivering the opinion: 'The authority of the court in such a case, under the constitution of the United States, and the fourteenth section of the judiciary act of 1789, to issue this writ, and to examine the proceedings in the inferior court, so far as may be necessary to ascertain, whether that court has exceeded its authority, is no longer an open question.' While, therefore, it is true that a writ of habeas corpus cannot generally be made to subserve the purpose of a writ of error, yet when a prisoner is held without any lawful authority, and by order beyond the jurisdiction of an inferior federal court to make, this court will, in favor of liberty, grant the writ, not to review the whole case, but to examine the authority of the court

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