Buie v. United States, 10073.
| Decision Date | 18 May 1942 |
| Docket Number | No. 10073.,10073. |
| Citation | 127 F.2d 367 |
| Parties | BUIE v. UNITED STATES. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Mack Taylor, of Fort Worth, Tex., for appellant.
William P. Fonville, Asst. U. S. Atty., of Fort Worth, Tex., for appellee.
Before FOSTER, SIBLEY, and HOLMES, Circuit Judges.
This appeal is from a judgment entered in the court below correcting an erroneous entry of a previous sentence and judgment on the records of the court. Appellant contends (1) that the evidence does not support the judgment, (2) that certain evidence introduced by the Government was inadmissible, (3) that the court lacked jurisdiction of the subject matter, and (4) that the court was without jurisdiction to change the substance of its judgment after the expiration of the term at which it was rendered.
Appellant was tried, convicted, and sentenced in a United States district court in Texas on seven counts of an indictment charging violations of the mail-fraud statute. The minutes of the court recited a sentence to five years imprisonment on the first count to be served, and a sentence to five years' imprisonment on counts two to seven, inclusive, to be served, but was silent as to whether the sentences were to run concurrently or consecutively. The commitment directed that the sentences be served consecutively.
After serving five years in a penitentiary, appellant obtained a writ of habeas corpus in a United States district court in Missouri directing his release from custody on the ground that the sentences were ambiguous and that the ambiguity should be resolved in favor of the prisoner. Execution upon the judgment was stayed for thirty days, however, with the proviso that the entry of a modified judgment imposing consecutive sentences within that time should render the judgment of discharge inoperative.
The Government thereupon filed in the district court in Texas its motion to correct the records of said court, alleging that the sentence as pronounced imposed two five-year sentences to be served consecutively, and that the minutes of the court should be corrected to conform thereto. A writ of habeas corpus ad prosequendum brought the prisoner before the court below, and a rule to show cause why the motion to correct the minutes should not be granted was served upon him. The cause was heard, and judgment was entered directing that the minutes be corrected to provide that the sentences run consecutively, which judgment was entered thirty-eight days subsequent to the order entered by the district court in Missouri.
The Government offered as witnesses the district judge who imposed the sentences, and the marshal who was in attendance and heard the sentences pronounced. Each testified that he recalled the sentences, and that appellant was sentenced to serve two five-year terms in the penitentiary, said terms to run consecutively or for a total of ten years. The deputy clerk, who attended the trial in an official capacity and who recorded the sentences, testified, over the objection of the appellant, as to the meaning...
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Buie v. King, 304.
...the expiration of the term at which it was rendered. The Circuit Court of Appeals for the Fifth Circuit affirmed the judgment (Buie v. United States, 127 F.2d 367), and perhaps its action might well be left without further discussion since no application has been made to the Supreme Court t......
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Wilson v. Bell, 9422.
...defendant were to run consecutively, despite the fact that the term at which the sentences had been pronounced had ended. Buie v. United States, 5 Cir., 127 F.2d 367. See, also, Miller v. United States, 5 Cir., 128 F.2d In this circuit, there is precedent for the correction of clerical erro......
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Buie v. King, 12520.
...correction petitioner appealed to the United States Court of Appeals for the Fifth Circuit. Such Court affirmed the judgment. Buie v. United States, 127 F.2d 367, petition for writ of certiorari denied 317 U. S. 689, 63 S.Ct. 256, 87 L.Ed. ___, rehearing thereon denied May 3, 1943, 63 S. Ct......
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Bowen v. United States, 10534.
...v. Robbins, 5 Cir., 115 F.2d 435; Meyers v. United States, 5 Cir., 116 F.2d 601; Garrison v. Reeves, 8 Cir., 116 F.2d 978; Buie v. United States, 5 Cir., 127 F.2d 367; Miller v. United States, 5 Cir., 128 F.2d 519. "It would seem reasonable that the court rendering the void judgment could s......