Bryant v. United States
| Decision Date | 16 March 1914 |
| Docket Number | 3931. |
| Citation | 214 F. 51 |
| Parties | BRYANT v. UNITED STATES. |
| Court | U.S. Court of Appeals — Eighth Circuit |
James Hepburn and Will H. Chappell, both of Guthrie, Okl., for plaintiff in error.
Isaac D. Taylor, Asst. U.S. Atty., of Guthrie, Okl. (Homer N Boardman, U.S. Atty., of Oklahoma City, Okl., on the brief) for the United States.
Before HOOK and SMITH, Circuit Judges, and AMIDON, District Judge.
This case involves the validity of a correction of a sentence for perjury in violation of section 5392, R.S. (U.S. Comp. St. 1901, p. 3653), which provides for a fine of not more than $2,000 and imprisonment at hard labor no more than five years. Bryant was convicted in Oklahoma and sentenced to imprisonment in the 'federal penitentiary at Ft Leavenworth, Kansas, for a period of one year. ' No fine was imposed as the statute requires, and the imprisonment was not expressly specified to be at hard labor. On October 10 1912, he was delivered to the warden of the penitentiary and entered upon the service of his term. Later he applied to the District Court of the United States for the District of Kansas, where the penitentiary is located, for release by habeas corpus on the ground that his sentence, not being according to the law, was void. The court ordered his discharge from the custody of the warden by delivery of him to the United States marshal, who should conduct him to the custody of the court in Oklahoma, there to abide the judgment and order of that court. When taken there his sentence was corrected to imprisonment in the United States penitentiary at Leavenworth, Kan., at hard labor, for the term of one year, and a fine of $1; the term of imprisonment to begin at the time he commenced serving the defective sentence. Though differently and correctly named, the penal institution is the same as that first designated. It is the corrected sentence which is attacked by this writ of error. Bryant is at large upon bond.
It is not clear Bryant was injured by the omissions from the first sentence, unless hard labor is a right of which he could not be deprived; nor does it appear that it was not in fact being required of him. But doubtless the court in Kansas, in deciding the application for the writ of habeas corpus, was influenced by Ex parte Karstendick, 93 U.S. 396, 399, 23 L.Ed. 889, where it was said:
'In cases where the statute makes hard labor a part of the punishment, it is imperative upon the court to include that in its sentence.'
The defects in the first sentence, if any, did not inhere in the trial or verdict, and therefore it appears Bryant is guilty and was properly convicted. He could have had the defects corrected by a direct proceeding for that purpose, which would have enabled the appellate court to regard also the rights of the government.
'When the orderly procedure of appeal is employed, the case is kept within the control and disposition of the courts; and if the judgment be excessive or illegal, it may be modified or changed, and complete justice done, as we have said, to the prisoner, and the penalties of the law satisfied as well. ' Ex parte Spencer, 228 U.S. 652, 663, 33 Sup.Ct. 709, 712, 57 L.Ed. 1010.
But, instead of adopting that course, Bryant sought by habeas corpus wholly to escape the remainder of his term of imprisonment. We think the District Court in Kansas properly prevented this by sending him back for a correction of the sentence. In re Bonner, 151 U.S. 242, 14 Sup.Ct. 323, 38 L.Ed. 149; United States v. Carpenter, 81 C.C.A. 194, 151 F. 214. In habeas corpus a court is expressly authorized 'to dispose of the party as law and justice require. ' Section 761, R.S. (U.S. Comp. St. 1901, p. 594). In Beale v. Commonwealth, 25 Pa. 11, it was said:
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