Duehay v. Thompson

• Decision Date: 10 May 1915
• Docket Number: 2533.
• Citation: 223 F. 305
• Parties: DUEHAY et al. v. THOMPSON.
• Court: U.S. Court of Appeals — Ninth Circuit

223 F. 305

DUEHAY et al. v. THOMPSON.

No. 2533.

United States Court of Appeals, Ninth Circuit.

May 10, 1915

Clay Allen, U.S. Atty., of Seattle, Wash., and G. P. Fishburne Asst. U.S. Atty., of Tacoma, Wash., for plaintiffs in error.

John J Sullivan, of Seattle, Wash., and Fred H. Thompson, of Los Angeles, Cal., for defendant in error.

Before GILBERT and ROSS, Circuit Judges, and WOLVERTON, District judge.

WOLVERTON District Judge.

On December 20, 1911, the defendant in error was convicted, on two counts, of the charge of having received articles stolen from the United States mails, and sentenced to the penitentiary at McNeil Island, Wash., for a term of four years, and to pay a fine of $1,000, upon each count, the terms of service to run consecutively. On petition for clemency, the President, on August 5, 1913, commuted the sentence to make the service on the two four-year terms run concurrently, instead of consecutively, virtually and in reality reducing the term of service from eight years to four. One-third of defendant in error's four-year term as commuted, being due to expire in August, 1914, he made application to the board of parole, sitting in May, 1914, for hearing applications for parole for the months of June, July and August of that year. The board, deeming he was not then eligible for parole, because he had not served a total of one-third of his original sentence of eight years, refused his application. Whereupon defendant in error applied to the court below for a writ of mandamus requiring the board to entertain his petition, and, the writ having been granted by judgment and decree of the court, the board of parole prosecutes error to this court.

The statute provides:

'That every prisoner who has been or may hereafter be convicted of any offense against the United States and is confined in execution of the judgment of such conviction in any United States penitentiary or prison, for a definite term or terms of over one year, or for the term of his natural life, whose record of conduct shows that he has observed the rules of such institution, and who, if sentenced for a definite term, has served one-third of the total of such term or terms for which he was sentenced, or, if sentenced for the term of his natural life, has served not less than fifteen years, may be released on parole as hereinafter provided. ' Act June 23, 1913, c. 9, 37 Stat. 650, Fed. Stat. Ann. (Supp. 1914) p. 326 (Comp. St. 1913, Sec. 10535).

The original act contains this further provision:

'That nothing herein contained shall be construed to impair the power of the President of the United States to grant a pardon or commutation in any case, or in any way impair or revoke such good time allowance as is or may hereafter be provided by act of Congress. ' Act June 25, 1910, c. 387, 36 Stat. 819, Fed. Stat. Ann. (Supp. 1912) p. 306 (Comp. St. 1913, Secs. 10535-10544).

The single question presented for decision is whether the commutation of the sentence by the President reduces the judgment of the court, as a judgment, that is, casts a new sentence respecting which the judgment attaches, so that the commuted sentence stands yet as the judgment of the court, or whether it supersedes or displaces the judgment of conviction in such a way that it no longer remains the sentence or judgment of the court, but becomes the commuted sentence of the President.

The mere statement of the proposition is its own solution. It is said that:

'Commutation of sentence or punishment is the change of a punishment to which a person has been condemned to a less severe one.' 29 Cyc. 1561.

Other definitions are found in the authorities, but all are to the same purpose, of which we note the following:

'Change from a higher to a lower punishment. ' Ogletree v. Dozier, Sheriff, 59 Ga. 800, 802.

'Substitution of a less for a greater punishment, by authority of law. ' Lee, Sergeant, v. Murphy, 22 Grat. (Va.) 789, 12 Am.Rep. 563.

Substitution of a 'less grade of punishment for that inflicted by the sentence pronounced upon conviction. ' State v. State Board of Corrections, 16 Utah, 478, 52 P. 1090.

A parole is tantamount to a commutation, for, as said by the court in the case last cited, it--

'substitutes lesser punishment for that imposed by the sentence. It changes one punishment known to the law for another and different punishment, also known to the law. In other words, it substitutes a less grade of punishment for that inflicted by the sentence pronounced upon conviction.'

It was this view of the significance of a parole, no doubt, that suggested to Congress the idea of adding the tenth section to the parole act of June 25, 1910 (36 Stat. 821), providing against any impairment of the authority of the President to grant pardons or commutations in any case.

The judgment of conviction must be the basis upon which all pardons and commutations can be grounded, for if there be no judgment and sentence, there can be no pardon or commutation. If there be a full pardon, the judgment is satisfied and ceases to have operation. If there be a commutation only, the judgment is only satisfied in part, and remains operative in part, and it requires the exercise of the function of the court in order that the commuted judgment may be executed. The President does not execute it, nor prescribe the process whereby it shall be satisfied. That is left to the judicial department of the Government, and is controlled...