Ex parte Harlan

• Decision Date: 01 November 1909
• Parties: Ex parte HARLAN et al.
• Court: U.S. District Court — Northern District of Florida

180 F. 119

Ex parte HARLAN et al.

United States Circuit Court, N.D. Florida.

November 1, 1909

[Copyrighted Material Omitted] [Copyrighted Material Omitted] [Copyrighted Material Omitted] [Copyrighted Material Omitted] [Copyrighted Material Omitted]

W. W. Flournoy and J. F. Stallings, for petitioners.

R. P. Reese, Sp. Asst. Atty. Gen., contra.

JONES District Judge ^[1] (after stating the facts as above).

As the hearing on habeas corpus is summary, and before the court without a jury, and is not governed by technical rules of pleading or evidence, the court allowed petitioners to introduce such evidence as they deemed material to their contentions, without then passing upon their relevancy or legality, reserving decision as to these matters until it came to render judgment on the merits of petitioners' applications.

1. Section 5440 of the Revised Statutes (U.S. Comp. St. 1901, p. 3676) authorizes the court upon conviction of a violation of its provisions, to inflict a 'penalty' within certain limits, and imprisonment in the penitentiary for not more than two years. The sentences conformed to the statute regarding the penalty, and the length of imprisonment, but instead of imposing imprisonment in the penitentiary, imposed imprisonment at hard labor in the penitentiary. It is insisted that the sentences, being in excess of the authority of the court, are nullities, and furnish no warrant for detaining the petitioners. Conceding that a sentence to hard labor is in excess of the jurisdiction, and void to the extent of such excess of jurisdiction, the question arises, What is the proper practice as to the issue of the writ of habeas corpus in a case like this? United States v. Pridgeon, 153 U.S. 48, 14 Sup.Ct. 746, 38 L.Ed. 631, is much like this in principle, the only difference being that here the application for relief is to the court of original jurisdiction, while there, it was made to another court, in whose territorial jurisdiction Pridgeon was confined. The Supreme Court held in that case, that 'where a court has jurisdiction of the person and offense, the imposition of a sentence in excess of what the law permits does not render the legal or authorized portion of the sentence void, but leaves only such part of it as may be in excess, open to question and attack. ' In the conclusion of its opinion, the court was particular to say, 'It did not consider it necessary or proper to express any opinion as to what would have been the proper action of the Circuit Court in dealing with the petitioner's application,' and refrained from intimating even whether the proper practice would be to deny the writ and leave the petitioner to his writ of error, or to issue the writ of habeas corpus, and commit the prisoner to the custody of the penitentiary officials, with directions to carry out and enforce only that part of the sentence imposing imprisonment according to the rules and regulations of the institution. In Re Bonner, 151 U.S. 242-259, 14 Sup.Ct. 323, 326 (38 L.Ed. 149), where the Supreme Court discusses the question at some length, Mr. Justice Field speaking of cases where the conviction itself is correct, and 'the excess of jurisdiction on the part of the court being in enlarging the punishment or enforcing it in a different mode or place than that provided by law,' says:

'In such case, there need not be any failure of justice, for where the conviction is correct, and the error or excess of jurisdiction has been as stated, there does not seem to be any good reason why the jurisdiction of the person shall not be reassumed by the court that imposed the sentence in order that its defects may be corrected. * * * In such case, the original court would only set aside what it had no authority to do, and substitute the direction required by law to be done upon the conviction of the offender.'

The whole opinion is a strong admonition to the courts to conform strictly to the terms of the statutes in imposing sentences. Here, the application for the writ is to the court of original jurisdiction, and the court, the prisoners still being within its control, has full power to correct the sentences, or, if need be, resentence according to law, and for many obvious reasons, it is better for this court to issue the writ and bring up the prisoners and correct an unauthorized sentence than to leave that duty to be performed by other courts. Reynolds v. United States, 98 U.S. 145-167, 25 L.Ed. 244, opinion on rehearing.

The writ having issued, and the prisoners being in court, and having had due notice, the government moves to amend the sentences nunc pro tunc by expunging therefrom the part imposing 'hard labor.' These words can be expunged without affecting in any way the validity of that part of the sentence which already provides for imprisonment in the penitentiary. The words are not so interwoven and intermingled with the purpose of the rest of the sentence, or the language in which it is expressed, that they cannot be stricken out, and still leave the corrected sentence perfect, and capable of execution according to the command of the statute, and the judgment of the court in that respect. When statutes prescribe particular kinds or modes of punishment, the court has no power to inflict any other. The statute nowhere authorizes the court to impose hard labor on conviction for the offense, though it does authorize and require imprisonment in the penitentiary. When the court went further than imprisonment in the penitentiary, and prescribed hard labor, it cut loose from the authority of the statute, and exceeded its jurisdiction, and to the extent of such excess, its action is a nullity. It is true that hard labor may be inflicted by the penitentiary authorities, where the sentence is to imprisonment in the penitentiary merely; but in that case, hard labor is inflicted, not in obedience to the command in the sentence, but because of the status of confinement in the penitentiary, under whose rules hard labor may be administered, if they so provide, whether included in the sentence or not. No law gives the court the power to determine what the rules and discipline of the penitentiary shall be. The citizen has the right to stand on the law as it is, and to insist that the court, by imposing modes of punishment which the statute does not provide for the offense, shall not determine questions which the law leaves solely to the prison authorities, under the statutes regulating federal penitentiaries. Plainly, that part of the sentence which imposed hard labor is without warrant in law, beyond the power of the court to inflict in any event on a conviction for this offense, and is invasive of the legal rights of petitioners. Manifestly, it is the duty of the trial court, when its attention is called to its unauthorized action, to correct the sentence nunc pro tunc in this particular.

2. While the writer does not doubt in view of the statement in the letter from the President's secretary to Senator Taliaferro, that the President has ordered the sentences in these cases to be commuted to six months' imprisonment, the court can take no action upon it. A pardon must be delivered to the prisoner, or some one for him, before it can become legally effective. Until then, it rests in the pleasure of the pardoning power to rescind and withdraw what, up to that time, is a mere promise to grant a favor in the future. It is not shown that any warrant of commutation has ever issued or been delivered. Had that been done, as the action of the executive must appear by matter of record, it could be shown only by the production of the warrant of commutation, or a certified copy thereof. These matters aside, had a warrant of commutation issued and been delivered to the prisoners, and exhibited to the court, it would not afford the slightest reason for interfering with the execution of the commuted sentence in the penitentiary. The constitutional prerogative of the President to grant reprieves and pardons includes the power to commute punishments. A common exercise of the power is where without changing the mode of punishment, less of that kind of punishment is exacted and substituted for the greater punishment of the same kind required by the original sentence. Here, the punishment fixed was imprisonment in the penitentiary for a certain time, and it is changed to imprisonment there for a less time. The original sentence to the penitentiary being lawful, and the President having the power to shorten the length of imprisonment without otherwise interfering with it, the execution of the commuted sentence in the penitentiary cannot be unlawful merely because the statutes do not authorize the courts, in fixing the punishment in the first instance, to inflict imprisonment in the penitentiary for so short a time. In re William Wells, 18 How. 307, 15 L.Ed. 421.

3. When the Circuit Court is in session, it necessarily makes the order to draw the grand jury to attend its sitting. At other times, the order is properly made by any 'one of the judges of such Circuit Court,' in his discretion. Rev. St. Sec. 810. Under our statutes, whatever may have been the case at the common law (Curtis v. Commonwealth, 87 Va. 589, 13 S.E. 73), the making of an order for the drawing and attendance of a grand jury is the exercise of judicial power, but the power pertains to the judge, as well as to the court. Such an order does not determine anything with reference to any adversary proceeding in the court, or conclude public or private rights in any way, and amounts to nothing more than a mere administrative regulation of internal affairs relating to the organization of the court. There is nothing in the nature of the order which calls for the presence of the judge when the court...