Bernstein v. United States

• Decision Date: 05 December 1918
• Docket Number: 1652.
• Citation: 254 F. 967
• Parties: BERNSTEIN v. UNITED STATES.
• Court: U.S. Court of Appeals — Fourth Circuit

254 F. 967

BERNSTEIN v. UNITED STATES.

No. 1652.

United States Court of Appeals, Fourth Circuit.

December 5, 1918

Robert H. Talley, of Richmond, Va., for appellant.

Hiram M. Smith, Asst. U.S. Atty., of Richmond, Va. (Richard H Mann, U.S. Atty., of Petersburg, Va., on the brief), for the United States.

Before KNAPP and WOODS, Circuit Judges, and McDOWELL, District Judge.

KNAPP Circuit Judge.

On April 11, 1916, the appellant, Bernstein, convicted in the court below of violating certain provisions of Bankruptcy Act of July 1, 1898, c. 541, 30 Stat. 544, was sentenced to pay a fine of $1,000, and to be imprisoned 'in the penitentiary at Atlanta, in the state of Georgia, for the period of 18 months from this date. ' He sued out a writ of error, and was released on bail pending review by this court, which affirmed the judgment in the following December. 238 F. 923 151 C.C.A. 657. In the meantime, and presumably upon conviction of some other offense, he was sent by the United States District Court for the Eastern District of Missouri to a prison or jail in that state for a term which did not expire until nearly 2 years after the date when he was sentenced to Atlanta for 18 months. Upon his discharge from confinement in Missouri, he was taken into custody by the marshal for the Eastern District of Virginia under the prior sentence. He at once demanded to be released on the ground that the time specified in that sentence had long before expired, and he could not be further detained or imprisoned thereunder. At the same time he presented to the court below his petition for a writ of habeas corpus ad subjiciendum, in which he sets forth his contention as follows:

'Your petitioner contends and insists that such judgment and sentence is now inoperative and void because the time therein specified, to wit, 18 months from the date thereof, has now expired, petitioner, after such sentence and until lately having been confined in prison under sentence of another federal court, to wit, the United States District Court for the Eastern District of Missouri, at St. Louis, the confinement being in the Missouri jail at St. Charles, and he cannot, therefore, be held for further confinement or imprisonment thereunder, the time of the imprisonment pronounced by such sentence having actually run out and expired on the 11th day of October, 1917, and there being no further imprisonment ordered or set forth in said judgment and sentence, and the court being without authority or power to resentence petitioner, the term at which he was convicted and sentenced having long since expired.'

The court below refused the writ prayed for, and thereupon 'resentenced' Bernstein to pay a fine of $1,000 and to be imprisoned 'in the penitentiary at Atlanta for the period of 18 months. ' He appeals from the refusal to grant the writ, and from the resentence.

The question raised by appellant is not new and has been frequently answered. It may be assumed, as he contends, that a court is without power, in the absence of statutory authority, to alter or amend a final judgment in either a civil or criminal case after the expiration of the term at which the judgment was rendered, unless during that term there was some reservation of subsequent control. But it has been repeatedly held that the naming of a date when the sentence shall be executed, or the period of imprisonment begin, is not a part of the sentence proper, and therefore such date may be changed after the term expires. In a legal sense, the sentence is the punishment fixed for the offense of which the accused has been convicted, and any order respecting the time of its infliction is but the award of execution or a direction to the clerk for framing the mittimus. Such an order or direction is said to be, not a judicial, but merely a ministerial, act, to which the rule invoked by appellant...